           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON


               SAMMIE LEE TAYLOR v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-19190, W. Fred Axley, Trial Judge



                   No. W1999-00977-CCA-R3-PC - Decided May 26, 2000



The appellant, Sammie Lee Taylor, appeals the denial of his petition for post-conviction relief. In
1994, he was convicted by a Shelby County jury of felony murder, especially aggravated kidnapping,
especially aggravated robbery and aggravated sexual battery. In this direct appeal, he collaterally
attacks his convictions upon grounds of ineffective assistance of trial counsel and that the post-
conviction court erred in denying his motion for funds for expert services at the post-conviction
level. We affirm the post-conviction court’s denial of the petition.

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

GLENN, J., delivered the opinion of the court, in which WELLES and HAYES, J.J., joined.

Charles Brent Walker, Germantown, Tennessee, attorney for Appellant, Sammie Lee Taylor

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer,
Assistant Attorney General, William L. Gibbons, District Attorney General, and John Campbell,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                            OPINION

         This appeal presents the post-conviction claim of ineffective assistance of counsel and the
right to expert services in a non-capital post-conviction proceeding. In 1994, a Shelby County jury
found the appellant, Sammie Lee Taylor, Jr., guilty of felony murder, especially aggravated
kidnapping, especially aggravated robbery, and aggravated sexual battery. An effective sentence of
life without the possibility of parole plus sixty-two years was imposed by the trial court. His
convictions and sentences were affirmed by this court on direct appeal.1 On November 26, 1997,


       1
         See State v. Sammie Lee Taylor, No.02C01-9501-CR-00029 (Tenn. Crim. App., Jackson,
Oct. 10, 1996), perm. to appeal denied, (Tenn. Mar. 3, 1997).
the appellant filed the instant post-conviction petition alleging that he was denied the effective
assistance of trial counsel.2 The post-conviction court denied relief. The appellant now appeals the
lower court’s denial. After review, we affirm.


                                   FACTUAL BACKGROUND

        The appellant’s convictions stem from his direct participation in the abduction and brutal
murder of a twenty-three year old Memphis nursing student. On July 7, 1993, the sixteen year old
appellant and an accomplice approached the victim outside her Mud Island apartment, forcing her
into the trunk of her vehicle. The appellant drove the victim’s vehicle to a location where he and his
accomplice were joined by three other co-defendants. The appellant and the four co-defendants then
drove the victim’s vehicle to an isolated area in the county where she was severely beaten, sexually
assaulted, robbed, and then run over by her own vehicle. Her body was then dragged to the side of
a bridge and thrown over.

                               I. Ineffective Assistance of Counsel

         The appellant’s ineffective assistance of counsel claim is based upon the following grounds:
(1) trial counsel’s failure to request a change of venue; (2) trial counsel’s failure to present
psychological expert testimony at the sentencing phase of the trial; (3) juvenile defender counsel’s
failure to raise all legal and factual issues, failure to object to improperly seated judge, and failure
to object to or rebut opinion testimony of psychological examiner; and (4) trial counsel’s failure to
pursue DNA testing. Initially, we note that the appellant’s challenges regarding his juvenile court
transfer and the effectiveness of counsel at the juvenile proceedings have been previously determined
by this court on direct appeal. See State v. Sammie Lee Taylor, No. 02C01-9501-CR-00029. An
issue that has been previously determined on direct appeal cannot support a petition for post-
conviction relief and is, therefore, excluded. See Tenn. Code Ann. § 40-30-206(h) (1997); see also
State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996); House v. State, 911 S.W.2d 705, 710 (Tenn.
1995), cert. denied, 517 U.S. 1193, 116 S.Ct. 1685 (1996).

                 A. Standard for Determining Ineffective Assistance of Counsel

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is upon the petitioner to show (1) that counsel's performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S.Ct.
838, 842-44 (1993). The Strickland standard has been applied to the right to counsel under Article
I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2 (Tenn.1989).



       2
           An amended petition was filed on February 13, 1998.

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        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), our supreme court determined that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. On post-conviction review, there is
a strong presumption of satisfactory representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1995). Moreover, in reviewing counsel's conduct, a "fair
assessment of attorney performance 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;
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982).

         A trial court’s findings of fact in a post-conviction hearing are conclusive on appeal unless
the evidence in the record preponderates against those findings. See Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied,
441 U.S. 947, 99 S.Ct. 2170 (1979). Notwithstanding this general rule, in State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999), our supreme court held that “[c]ases that involve mixed questions of law and
fact are subject to de novo review.” (citing Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App.
1997)). Specifically, the supreme court determined that issues involving alleged deficient
performance of counsel and possible prejudice to the defense are mixed questions of law and fact.
See Burns, 6.S.W.3d at 461. Although we perform a de novo review of the issue, the appellant must
still establish his or her allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-
30-210(f) (1997).

                            1. Failure to Request A Change of Venue

       The appellant contends that trial counsel was ineffective for failing to request a change of
venue. At the post-conviction hearing, the appellant testified that trial counsel never discussed
“moving the case out of Shelby County” although counsel did discuss the case’s publicity.
Nonetheless, the appellant conceded that “[t]he town it wouldn’t matter. Anywhere in Tennessee
I was going to lose. I was the first juvenile in this whole state to get all this time. I got all type of
evidence. Pre-trial-publicity. The judge showing his bias.”

       In response to the appellant’s allegation, counsel asserted that he did consider filing such
motion, although no motion was ever filed. Trial counsel conceded that pre-trial publicity was fairly
extensive. He explained, however, that the four co-defendants had moved for a change of venue and
counsel was present to hear their respective arguments. The co-defendants’ motions for a change
of venue were denied. He further testified that he did not file the motion because he wanted a
severance from the co-defendants and, if the co-defendants’ motions had been granted, the appellant
would have been tried separately. Additionally, after considering the nature of the case, trial counsel
reasoned that

        [his] client would be better off in Shelby County, certainly as opposed to a rural area
        in Tennessee. And, even if we would be shipped to Nashville. . .I think a black/white
        issue was an important issue in this case. We had nothing but black defendants and
        a white victim. The area where it happened was a rather nice area of town . . .and I

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       thought it was a black/white issue and our chances of getting more blacks on the jury,
       I thought, were greater here in Shelby County.


        No proof was presented at the post-conviction hearing to establish that pretrial publicity in
any way impaired the appellant’s ability to obtain a fair and impartial jury. Unsupported allegations
by a petitioner will not suffice to establish prejudice. Dobbert v. Florida, 432 U.S. 282, 303, 97
S.Ct. 2290, 2303 (1977); State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). Nor will
prejudice be presumed on the mere showing that there was considerable pre-trial publicity. Dobbert,
432 U.S. at 303, 97 S.Ct. at 2303. Moreover, the post-conviction court found that counsel’s decision
not to seek a change of venue was a strategic decision. We agree. "Allegations 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).
Accordingly, the appellant has failed to prove his allegation by clear and convincing evidence. This
issue is without merit.

             2. Failure to Present Psychological Expert During Sentencing Phase

         Next, the appellant complains that counsel failed to request psychological testing and as a
result the appellant was deprived of the opportunity to present mitigating evidence at his sentencing
hearing. At the post-conviction hearing, the appellant admitted that he had never been diagnosed
with or treated for a mental illness. Nonetheless, he stated “Me being in prison, I believe I am kind
of mentally ill.” He explained that “[m]y mental problem is being around a lot of pretenders.” He
further stated that “[he] don’t need no psychologist” to testify about some kind of problem that he
may have.

        Trial counsel testified that he retained a trial consultant to aid in preparation of the penalty
phase. He worked with the trial consultant in gathering mitigating proof. Specifically, trial counsel
recalled meeting with the appellant’s family and that the trial consultant had “lined up a number of
witnesses . . . including . . . a former teacher, a former park ranger. . .we put on . . . a lot at the
mitigation stage of the proceeding.” Counsel testified that all mitigating witnesses were presented
except for one, the appellant, who refused to testify. He stated that the appellant was examined by
clinical psychologist, John Hutson, a month prior to the trial. Counsel decided not to present Dr.
Hutson’s testimony because “[Hutson] said there was nothing positive he could say. . . .[H]e called
me back after he interviewed the defendant and I asked him if there was anything good that he could
say. . . . There was dead silence for about fifteen to twenty seconds and then he said, well, he’s
young.”



        The appellant admitted at the post-conviction hearing that he does not suffer any mental
impairments. The appellant was examined by a reputable psychologist who could not find any
significant “mitigating” evidence other than the appellant’s youth. The proof is undisputed that the
only mitigating evidence not presented by trial counsel was the testimony of the appellant, who

                                                  -4-
refused to take the stand. When an appellant contends that trial counsel failed to locate potential
witnesses in support of his defense, he bears the burden of presenting these witnesses at the
post-conviction evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
 If the appellant fails to present such witnesses, he fails to establish the prejudice prong mandated
by Strickland v. Washington, supra. Black, 794 S.W.2d at 758. We conclude that the appellant
has failed to establish this allegation of ineffectiveness by clear and convincing evidence. This issue
is without merit.

                                3. Failure to Request DNA Testing

         Finally, the appellant asserts that trial counsel was ineffective for failing to pursue any form
of independent DNA testing in order to scientifically bolster an argument to the jury that the
appellant did not commit any type of sexual assault against the victim. Regarding the appellant’s
claim that counsel was ineffective for failing to order DNA tests, trial counsel responded that, “. .
. as I recall there was nothing found on the victim that would have been there to test.”

        The appellant maintains that the DNA testing was necessary to prove that he was not guilty
of the aggravated sexual battery of the victim. On direct appeal, this court found the evidence
sufficient beyond a reasonable doubt to support the appellant’s conviction for sexual battery based
upon a theory of criminal responsibility. See State v. Sammie Lee Taylor, No. 02C01-9501-CR-
00029 (“based on the appellant’s participation in the events leading up to and following the sexual
battery of Ms. Wilburn, . . . any rational trier of fact could have found that the appellant ‘acted with
the intent to promote or assist in the commission’ of aggravated sexual battery”). “[E]ven though
he may not have had sexual contact with Ms. Wilburn, based upon his conduct and culpability, he
is criminally responsible.” Id. Accordingly, DNA testing was not necessary to prove or disprove
the appellant’s criminal liability for the aggravated sexual battery upon the victim. Moreover, as the
post-conviction court properly found, “there was not any semen or any material to perform a
serological DNA test.” Thus, trial counsel was not deficient in failing to request independent DNA
testing. We conclude that the appellant has failed to meet his burden of establishing this allegation
of counsel’s ineffectiveness by clear and convincing evidence. This issue is, likewise, without merit.

       After reviewing the appellant’s allegations de novo, we conclude that the appellant has failed
to show, by clear and convincing evidence, that he was denied the effective assistance of counsel.
In doing so, we reiterate the findings of the post-conviction court:

        This Court finds that counsel not only rendered competent assistance to Petitioner
        within the range required by Baxter v. Rose, but that counsel provided Petitioner with
        an outstanding representation at trial and on appeal. . . . This court finds that the
        Petitioner asserts relief based on the fact that he was unsuccessful at trial. His
        attorney counseled Petitioner that his only defense was very risky and Petitioner
        chose to go to trial regardless. Petitioner’s attorney also counseled him to testify at
        his sentencing hearing in order to show the jury remorse. Petitioner also chose not
        to heed his attorney’s advice and refused to testify. At trial, Mr. Quinn put on a very
        zealous and vigorous defense and at the sentencing phase he utilized experts afforded

                                                  -5-
       by the court. All these devices were used for the Petitioner’s benefit. Just because
       Petitioner lost his case is not a basis to find outstanding attorneys ineffective. The
       Eighth Circuit in Robinson v. United States, stated in pertinent part, “Hindsight can
       always be utilized by those not in the fray so as to cast doubt on trial tactics a lawyer
       has used.” 488 F.2d 1255, 1256 (8th Cir. 1971).

Accordingly, relief based upon ineffective assistance of trial counsel is denied.


           II. Expert Services for Non-capital Indigent Post-Conviction Petitioner

        The appellant filed a motion with the post-conviction court requesting funds (1) to hire an
investigator and a psychological expert and (2) to conduct a demographic survey of Shelby County.
The motion was denied by the court. He asserts that “the expert would be of material assistance in
the establishment of his defense theory.” The appellant now contends that the denial of the funds
by the post-conviction court is unconstitutional, in violation of the Equal Protection and Due Process
Clauses of the Tennessee Constitution, Art. I, § 8 and the Fourteenth Amendment of the United
States Constitution.

        Our supreme court has previously addressed the appellant’s claim, holding that “the state is
not required to provide expert assistance to indigent non-capital post-conviction petitioners.” Davis
v. State, 912 S.W.2d 689, 696-697 (Tenn. 1995). In Davis, the court noted that, in this state, there
is no rule or statute that entitles a non-capital post-conviction petitioner state funded expert
assistance. Id. at 695. In denying the funding of experts, the court observed the distinction between
providing indigent defendants the basic tools of an adequate defense at trial and on direct appeal as
opposed to those at the post-conviction level. Consistent with previous analyses of this distinction,
our supreme court reiterated:

       [a] direct appeal is the primary avenue for review of a conviction and sentence. Once
       the process goes beyond the trial and direct appeal as of right stage, the state has no
       duty to duplicate the legal arsenal that may be privately retained by a criminal
       defendant in a continuing effort to reverse his conviction.

Id. at 696 (citing Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391 (1983); Ross v.
Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 247 (1974)). In accordance with our supreme court’s
decision in Davis, this issue is without merit.




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




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