         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs July 10, 2007

                CORNELIUS BOALES v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Henderson County
                           No. 06027-2    Donald H. Allen, Judge



                   No. W2006-01866-CCA-R3-PC - Filed October 17, 2007


Petitioner was convicted by a jury of one count of felony possession of cocaine with intent to sell,
a class B felony, and one count of felony possession of marijuana with the intent to sale, a class E
felony. Petitioner was sentenced as a Range I offender to twelve years for the cocaine conviction
and two years for the marijuana conviction to be served concurrently in the Tennessee Department
of Correction and a $100,000 fine. Petitioner’s conviction was affirmed by this court. See State v.
Boales, 2005 WL 517538, at *1. (Tenn. Crim. App., at Jackson, March 3, 2005) perm. app. denied
(Tenn. June 27, 2005). This Court also affirmed his sentence as to incarceration, but reduced the
fine imposed to $50,000. See Boales, 2005 WL 517538. Petitioner timely filed a petition for post-
conviction relief alleging ineffective assistance of trial counsel. The trial court dismissed the
petition. After a thorough review of the record of the post-conviction hearing, this Court affirms the
judgment of the trial court dismissing 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 DAVID G. HAYES and NORMA
MCGEE OGLE, JJ. joined.

George Morton Googe, District Public Defender; and Hewitt Chatman, Assistant Public Defender,
Jackson, Tennessee for the appellant, Cornelius Boales

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney
General for the Appellee, State of Tennessee.

                                             OPINION

        Petitioner claims in this appeal that his sentence for two counts of felony drug possession
with the intent to sell is void or voidable due to ineffective assistance of counsel by his appointed
trial counsel.
I. Background

        This Court summarized the proof at trial as follows in our opinion addressing the defendant’s
direct appeal:

               On April 18, 2002, Narcotics Investigator Michael Harper with the Lexington
       Police Department, along with Investigator Daniel Stoneburner of the Henderson
       County Sheriff’s Department and other officers, executed a search warrant at the
       residence of the Appellant at 1565 Leo Woods Road in Cedar Grove. Two mobile
       homes were situated on the property, one occupied by the Appellant and the other
       occupied by the Appellant’s mother. The police officers had driven to the location
       in an unmarked van, and several officers had been posted in “concealed” positions
       in the event the Appellant returned home.

                Approximately thirty minutes into the search of the homes, the Appellant and
       his girlfriend, Misty Birchett, drove up the driveway to the Appellant’s residence in
       his mother’s vehicle, which the Appellant had borrowed. Birchett was driving the
       vehicle with the Appellant in the passenger seat. When the vehicle came to a stop,
       officers surrounded the car and ordered the Appellant and Birchett out. The pat down
       of the Appellant by Investigator Harper revealed the presence of a small bag of
       marijuana and an orange plastic Easter egg containing crack cocaine in the
       Appellant’s left front pants pocket. Investigator Stoneburner also observed the
       removal of the plastic egg containing cocaine and the bag containing marijuana from
       the Appellant’s pocket. In addition, Stoneburner recovered a brown bag containing
       individual plastic bags of marijuana on the bench seat of the vehicle between the
       Appellant and Birchett. The marijuana in the Appellant’s pants pocket weighed 5.7
       grams, the crack cocaine in the Easter egg weighed 5.5 grams, and the marijuana
       found on the seat weighed 84.9 grams. The Appellant and Birchett were jointly
       indicted in a four-count indictment charging each alternatively with the possession
       of over 0.5 grams of cocaine with the intent to sell or deliver and alternative counts
       of possession of over 0.5 ounces of marijuana for purposes of sale or delivery.

                On the morning of the scheduled trial, Birchett pled guilty to possession of
       cocaine over 0.5 grams and possession of marijuana over 0.5 ounces. Testifying on
       behalf of the Appellant, Birchett stated that she and the Appellant lived together. She
       testified that the marijuana found on the seat belonged to her and not the Appellant.
       She stated that she had put the marijuana under the arm rest of the car when the
       Appellant picked her up that evening. Birchett admitted that she planned to sell the
       84.9 grams of marijuana found on the seat and that the Appellant knew that she sold
       marijuana and cocaine. She stated that she never saw the Appellant with any cocaine
       that evening and never saw the officers remove a plastic Easter egg from the
       Appellant’s pocket. However, she stated that she had two rocks of crack cocaine
       which she had placed in a small plastic bag. She explained that when the officers


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       began approaching the vehicle at the Appellant’s mobile home, she threw the crack
       cocaine toward the passenger’s side floorboard and never saw the cocaine again. The
       Appellant, testifying in his own defense, denied any knowledge of the cocaine and
       denied that Harper ever removed a plastic Easter egg from his pants pocket. He
       admitted that he had the 5.7 grams of marijuana in his pocket and that he had asked
       Birchett to drive so he “could roll about two or three blunts” from the “weed” on the
       way back home. He stated that he only learned of the larger bag of marijuana while
       en route to his residence. The Appellant stated that there were a number of plastic
       Easter eggs in the car “because it was Easter time.” He surmised that the officers
       took one of the eggs from the car, recovered Birchett’s two rocks from the
       floorboard, and placed them in the Easter egg. He offered no explanation as to why
       the officers would want to “plant” the evidence on him.

               At the conclusion of the proof, the jury found the Appellant guilty of each
       count charged in the indictment. Additionally, the jury assessed the maximum fine
       of $100,000 for each of the class B felony convictions. The trial court merged the
       alternative counts, resulting in a conviction under Count 1, which charged class B
       felony possession with the intent to sell cocaine, and under Count 3, class E felony
       possession with the intent to sell marijuana. For the class B felony, the trial court
       imposed the $100,000 fine as fixed by the jury. At the conclusion of the sentencing
       hearing, the trial court also sentenced the Appellant, as a Range I offender, to the
       maximum sentence of twelve years for the cocaine conviction and the maximum
       sentence of two years for the marijuana conviction. The two sentences were ordered
       to be served concurrently.

State v. Boales, 2005 WL 517538, at *1 (Tenn. Crim. App., at Jackson, March 3, 2005) perm. app.
denied (Tenn. June 27, 2005).

II. Analysis

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance
was deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to
deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to
prove either deficiency or prejudice justifies denial of relief; therefore, the court need not address
the components in any particular order or even address both if one is insufficient. Goad, 938 S.W.2d
at 370. In order to establish prejudice, the petitioner must establish 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.



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        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

        In reviewing counsel’s conduct, a “fair assessment . . . 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, 104 S. Ct. at 2065; Honeycutt, 54 S.W.3d at 768. The fact that a particular strategy or tactic
failed or hurt the defense does not, standing alone, establish unreasonable representation. However,
deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982).

        In Baxter, 523 S.W.2d at 936, our Supreme Court established that the services rendered
should be within the range of competence demanded of attorneys in criminal cases. Further, the
court stated that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d
1197 (D.C. Cir. 1973). Id. In Beasley, the court stated:

       [T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is a
       violation of this standard for defense counsel to deprive a criminal defendant of a
       substantial defense by his own ineffectiveness or incompetence. . . . Defense counsel
       must perform at least as well as a lawyer with ordinary training and skill in the
       criminal law and must conscientiously protect his client’s interest, undeflected by
       conflicting considerations. . . . Defense counsel must investigate all apparently
       substantial defenses available to the defendant and must assert them in a proper and
       timely manner.

491 F.2d at 696 (citations omitted). In DeCoster, the court stated:

       In General--Counsel should be guided by the American Bar Association Standards
       for the Defense Function. They represent the legal profession’s own articulation of
       guidelines for the defense of criminal cases.

       Specifically--(1) Counsel should confer with his client without delay and as often as
       necessary to elicit matters of defense, or to ascertain that potential defenses are



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       unavailable. Counsel should discuss fully potential strategies and tactical choices
       with his client.

       (2) Counsel should promptly advise his client of his rights and take all actions
       necessary to preserve them. . . . Counsel should also be concerned with the accused’s
       right to be released from custody pending trial, and be prepared, where appropriate,
       to make motions for a pre-trial psychiatric examination or for the suppression of
       evidence.

       (3) Counsel must conduct appropriate investigations, both factual and legal, to
       determine what matters of defense can be developed. The Supreme Court has noted
       that the adversary system requires that “all available defenses are raised” so that the
       government is put to its proof. This means that in most cases a defense attorney, or
       his agent, should interview not only his own witnesses but also those that the
       government intends to call, when they are accessible. The investigation should
       always include efforts to secure information in the possession of the prosecution and
       law enforcement authorities. And, of course, the duty to investigate also requires
       adequate legal research.

487 F.2d at 1203-04.

        The trial court’s findings of fact are afforded the weight of a jury verdict, and this court is
bound by the trial court’s findings unless the evidence in the record preponderates against those
findings. Henley, 960 S.W.2d at 578; 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 trial judge. Honeycutt, 54 S.W.3d at 766. Questions concerning the credibility of witnesses
and the weight and value to be given to their testimony are resolved by the trial court, not this court.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The burden of establishing that the evidence
preponderates otherwise is on petitioner. Henley, 960 S.W.2d at 579.

        In the instant case, Petitioner contends there are seven areas before and during trial where
counsel was ineffective. Petitioner’s first contention is that his trial counsel told him that he had
never “had a criminal case.” However, trial counsel testified at the hearing that he had worked part-
time for a year at the public defender’s office after he graduated from law school. Counsel testified
that he handled more than a hundred criminal cases. The trial judge found Counsel’s testimony
credible in this regard. The trial judge’s findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Burns, 6 S.W.3d at 461. The trial court
found counsel’s testimony regarding his qualifications as a criminal defense attorney to be credible;
therefore, Petitioner is not entitled to relief on this ground.

       Petitioner’s second and third arguments contend that counsel was deficient because he did
not adequately confer with Petitioner before the trial nor did he share the results of the motion for
discovery. Petitioner testified that he spoke with counsel only three or four times before the trial and


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that this was only in regard to plea agreements offered by the State. Petitioner also testified that he
and his co-defendant did meet with his trial counsel and the co-defendant’s counsel on a separate
occasion and discussed the case and trial strategy. On cross examination, Petitioner admitted
speaking to and visiting with trial counsel’s assistant numerous times.

        Trial counsel testified that he made numerous attempts to speak with Petitioner on the
telephone and while they may have only met in person on three or four occasions, they did in fact
speak on the telephone. Counsel further testified that he gave Petitioner his business card and told
him to stay in touch. Counsel stated that he and Petitioner agreed that his only defense was that the
drugs belonged to his girlfriend and not to him. Counsel testified that he pursued this defense by
calling the girlfriend/co-defendant as a witness. Petitioner conceded on cross- examination that the
jury simply did not believe his theory.

       Counsel testified that he gave Petitioner a copy of the indictment and discussed the results
of the discovery motion with Petitioner. Petitioner testified that he requested the discovery on
various occasions and that he did not receive it from counsel. Petitioner did admit to having a
conversation in which Counsel informed him that the State did not have to tell him who “snitched
on him.” Once again, the trial judge accredited Counsel’s testimony that he adequately conferred
with the Petitioner and that he shared the discovery with him.

         Petitioner complains about trial counsel’s failure to pursue a suppression motion regarding
the search of Petitioner’s home. Petitioner contends that had counsel made this motion the case
would have been “thrown out.” Petitioner argues that the police officers finished the search of the
trailers and then waited for him to come home. Counsel testified that he did not see any basis to
challenge the search and that was why he did not file a suppression motion. The appellate record
before us does not include the search warrant at issue; therefore we are unable to address whether
or not trial counsel was deficient in not filing the motion.

         Petitioner’s fifth argument is that trial counsel did not inform him of the advantages or
disadvantages of testifying at trial. Petitioner chose to testify and admitted that counsel told him that
his testifying “could open up this or open up that” but not that the State could inquire into his past
convictions. However, although the State did ask if Petitioner had a criminal record, Petitioner did
not have to answer because the State failed to file notice of impeachment pursuant to Tennessee Rule
of Evidence 609 (a) (3) prior to trial.

        Petitioner’s next contention is that trial counsel failed to interview or call witnesses to testify.
According to the post-conviction hearing record, trial counsel called the co-defendant, the mother
of the defendant, and the defendant as witnesses for the defense. Counsel testified that he did not feel
there was any real reason to call the mother of the defendant to testify, but because Petitioner wanted
to, he obliged. Petitioner argued that his mother was not properly questioned at trial. Petitioner also
claimed that trial counsel did not properly interview her before trial. Defendant’s mother testified
that she spoke with trial counsel for about five minutes prior to testifying. Petitioner called his
mother to testify at the post-conviction hearing in order to allow her to “be properly questioned.”


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However, the trial judge found her testimony to have added nothing of value to the proof. We agree
that trial counsel was not deficient in the questions asked of Petitioner’s mother.

        Petitioner also contended that counsel should have called his nieces to testify. “When a
petitioner contends that trial counsel failed to discover, interview, or present witnesses in support
of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing.”
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Scott v. State, 936 S.W.2d
271, 273 (Tenn. Crim. App. 1996). As a general rule, this is the only way the petitioner can establish
that (1) a material witness existed who could have been discovered but for counsel’s negligent
investigation of the case; (2) a known witness was not interviewed; (3) the failure to discover or
interview the witness caused him prejudice; or (4) the failure to present a known witness or call the
witness to the stand resulted in the denial of critical evidence which caused the petitioner prejudice.
Black, 794 S.W.2d at 757. Neither the trial court nor this court can speculate on what a witness’
testimony might have been if introduced by counsel. Id. Petitioner did not call his nieces to testify
at the post-conviction hearing, therefore this court cannot determine whether or not Petitioner was
prejudiced as to the omission of their testimony from trial.

         Petitioner’s last argument is that trial counsel did not utilize the fact that Petitioner’s co-
defendant pled guilty and accepted responsibility for the same charges. Trial counsel called the co-
defendant to testify on Petitioner’s behalf. She testified that the drugs were hers and not Petitioner’s.
Even with this testimony the jury convicted Petitioner. It is the prerogative of the jury to determine
who is credible and who is not. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Petitioner
concedes that trial counsel called the co-defendant to the stand to testify in his behalf and that the
jury did not believe her. Accordingly, this issue is also without merit and Petitioner is not entitled
to relief.

                                           CONCLUSION

       For the foregoing reasons, we conclude that trial counsel did not render ineffective assistance
of counsel; therefore, the judgment of the trial court is affirmed.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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