        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 2, 2016

                   ANDRE DAVIS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                       No. 06-07425   W. Mark Ward, Judge




                 No. W2015-01250-CCA-R3-PC - Filed April 4, 2016
                        _____________________________

Petitioner, Andre Davis, was convicted of voluntary manslaughter by a Shelby County
jury and sentenced to fourteen and one-half years in incarceration. His first appeal was
denied. State v. Andre Davis, No. W2007-01442-CCA-R3-CD, 2008 WL 4831230, at *1
(Tenn. Crim. App. Nov. 5, 2008), perm. app. denied (Tenn. Mar. 16, 2009). Petitioner
filed a pro se petition for post-conviction relief which led to the grant of a delayed appeal
based on trial counsel‟s failure to file a motion for new trial. Petitioner was permitted to
file a motion for new trial. The motion was denied, and Petitioner was again denied relief
on appeal. Andre Davis v. State, No. W2011-00373-CCA-R3-CD, 2012 WL 5970932, at
*2 (Tenn. Crim. App. Nov. 29, 2012), perm. app. denied (Tenn. Apr. 10, 2013).
Petitioner then sought post-conviction relief again. After a hearing, the petition was
denied. On appeal, Petitioner challenges the post-conviction court‟s denial of relief.
After a review, we determine Petitioner has failed to prove by clear and convincing
evidence that he is entitled to relief. Accordingly, the judgment of the post-conviction
court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

R. Price Harris (on appeal); and Robert Brooks (at hearing), Memphis, Tennessee, for the
appellant, Andre Davis.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Omar Malik,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                               OPINION

       Nearly sixteen years ago, Petitioner shot Charlie Gipson after a confrontation in
the victim‟s front yard. The victim was killed by a bullet that ricocheted off of a tree.
Andre Davis, 2008 WL 4831230, at *1. A Shelby County jury found Petitioner guilty of
voluntary manslaughter as a lesser included offense of first degree murder. The trial
court sentenced Petitioner to fourteen and one-half years as a Range III, persistent
offender. Petitioner appealed. On appeal, he argued that the evidence was insufficient,
that the trial court erred in admitting hearsay from a police report to impeach his
testimony, that the trial court erred in excluding evidence of the victim‟s prior acts of
violence and gang affiliation, that the sentence imposed by the trial court was excessive,
and that cumulative errors deprived Petitioner of his right to a fair trial and due process.
Because his motion for new trial was filed one day late, this Court addressed only the
sufficiency of the evidence and sentencing, considering the other issues waived. Id. at
*4-6. His conviction and sentence were affirmed. Id. at *1.

        Thereafter, Petitioner sought post-conviction relief. He alleged ineffective
assistance of counsel, among other things. On December 6, 2010, Petitioner received a
delayed appeal due to trial counsel‟s failure to file a timely motion for new trial. A
motion for new trial was filed and denied. Petitioner again appealed to this Court. On
appeal, Petitioner raised one issue—whether the trial court erred in permitting the State to
utilize a statement within a police report to impeach Petitioner‟s testimony. This Court
determined that there was no error and affirmed Petitioner‟s conviction. Andre Davis,
2012 WL 5970932, at *3.

        Petitioner filed another petition for post-conviction relief on April 11, 2014. In the
multiple petitions filed pro se by Petitioner, and later by appointed counsel, numerous
areas of alleged ineffective assistance of counsel are cited along with a complaint that the
State failed to disclose evidence favorable to the defense, that newly discovered evidence
existed, that Petitioner received an “illegal sentence,” and that Petitioner suffered as a
result of both prosecutorial and judicial bias.

         The post-conviction court held a hearing on the petition. At the hearing, Officer
Bobby Jones of the Memphis Police Department testified that he was involved in the
initial investigation of the victim‟s death. He was the first officer on the scene. At trial,
Petitioner relied on a theory of self-defense, contending that the victim was holding a
weight bar1 which he mistook for a shotgun. When asked if the victim was holding a
weight bar at the time of his death or if a weight bar had been recovered as evidence,
Officer Jones stated that he had no knowledge of a weight bar. Officer Charles Cathey of
the Memphis Police Department also testified at the hearing. Officer Cathey is a crime

       1
           The weight bar was described as a long bar on which free weights were placed for weightlifting.


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scene investigator, and he did not recall seeing or photographing a weight bar at the scene
of the shooting.

       One of the trial attorneys appointed to represent Petitioner, an employee of the
Public Defender‟s Office, testified at the hearing. He served as co-counsel or “second
chair” in Petitioner‟s trial. In that capacity, he was responsible for taking notes and
discussing theories of the case with the lead trial counsel, who was now deceased. Co-
counsel testified that the photographs needed at trial by trial counsel were introduced into
evidence by the State prior to presentation of the defense proof. Trial counsel‟s strategy
was described as a “self-defense” theory. Trial counsel was “arguing that in the heat of
the moment, the weight bar [held by the victim] could have easily been confused with a
shotgun and that [Petitioner] was acting in self-defense out of fear [of] the victim, who I
think had a reputation of going armed with a shotgun.” Co-counsel remembered a
photograph of a weight bar being introduced into evidence but was not aware if the State
actually possessed the weight bar. Co-counsel mentioned that Petitioner got a “good
result” at trial and that he was “not sure what [Petitioner] was complaining about”
because he “got excellent representation.” Co-counsel explained that Petitioner was
facing a “murder first” charge with the possibility of a life sentence and, to walk away
from trial with a voluntary manslaughter conviction was a “substantial reduction.”

       Petitioner testified that trial counsel did not visit him at the jail until “one year and
one day” after he was appointed to represent Petitioner. Additionally, he alleged that the
“case was not investigated” in a satisfactory fashion. Petitioner claims that the weight
bar should have been confiscated and admitted at trial. Petitioner introduced several
exhibits at the hearing, some of which he claimed that he received from his trial counsel
during discovery and some of which he admitted were actually part of the trial on the
matter. Petitioner tried to submit the affidavit of “a witness he was trying to get
subpoenaed.” The post-conviction court would not allow Petitioner to present the
affidavit because it was hearsay but commented that Petitioner had “already testified to
the substance [of the affidavit] . . . during [a] previous hearing.” At the conclusion of the
hearing, the post-conviction court took the matter under advisement.

        In a written order, the post-conviction court denied relief, describing Petitioner‟s
“shotgun” approach to seeking relief in which Petitioner challenged many of trial
counsel‟s “tactical decisions.” Given that lead trial counsel was deceased at that the time
of the post-conviction hearing, the post-conviction court gave Petitioner the benefit of the
doubt by taking several of his allegations, such as the allegation that trial counsel failed to
meet with Petitioner prior to trial, as true. Nevertheless the post-conviction court found
Petitioner failed to prove prejudice as a result of this alleged deficiency. As to the failure
of trial counsel to cross-examine a witness, the post-conviction court found Petitioner did
not show deficient performance or prejudice as Petitioner failed to bring the witness to
the hearing to testify. The post-conviction court dutifully examined each and every one



                                               3
of Petitioner‟s seventeen allegations, concluding each time that Petitioner failed to show
prejudice or deficient performance. Petitioner filed a timely notice of appeal.

                                          Analysis

       On appeal, Petitioner challenges that post-conviction court‟s denial of relief.
Pointing to trial counsel‟s death as a “disadvantage” that somehow “deprived him of the
opportunity” to receive post-conviction relief, Petitioner insists that the post-conviction
court should have granted him a new trial. Petitioner also argues that trial counsel was
unprepared because he did not meet with Petitioner “until approximately seven days
before trial” and “seemed to offer no trial strategy nor theme nor theory in representing”
Petitioner. Petitioner also complains about co-counsel‟s testimony to support the State‟s
position, claiming that he was nothing more than a “note taker.” Finally, Petitioner
submits that the State presented no evidence to “rebut the claim in any sense or way.”
The State submits that Petitioner “has presented no evidence whatsoever of deficiency of
counsel.”

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a
petitioner must demonstrate that counsel‟s representation fell below the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Under the two prong test established by Strickland v. Washington, 466
U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient
and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408
(Tenn. 2002). Because a petitioner must establish both elements in order 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. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466
U.S. at 697).




                                              4
       The test for deficient performance is whether counsel‟s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s
conduct falls within the wide range of reasonable professional assistance.” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to
perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, „we address not what is prudent or appropriate, but only
what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use
hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does
not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, this deference to
the tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

        Even if a petitioner shows that counsel‟s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Burns, 6
S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be
“sufficient to undermine confidence in the outcome.” Id.

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the
post-conviction court‟s findings of fact “under a de novo standard, accompanied with a
presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P.
13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh
or re-evaluate the evidence presented or substitute our own inferences for those drawn by
the post-conviction court. Henley, 960 S.W.2d at 579. Questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156
(citing Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of
law and application of the law to the facts are reviewed under a purely de novo standard,
with no presumption of correctness. Fields, 40 S.W.3d at 458.



                                             5
        In this case, the record demonstrates the judgment of the post-conviction court
should be affirmed. Petitioner has failed to present clear and convincing evidence to
show that trial counsel was deficient. Co-counsel testified at the hearing about trial
counsel‟s representation. The post-conviction court accredited his testimony. Petitioner
failed to present any witnesses or proof at the post-conviction hearing to support his
allegations of ineffective assistance of counsel. Petitioner was charged with first degree
murder and received a conviction for voluntary manslaughter. On appeal from his denial
of post-conviction relief, Petitioner urges this Court to grant him relief in the form of a
new trial because he is somehow unable to prove that trial counsel was ineffective merely
due to the fact that trial counsel died prior to the post-conviction hearing. Petitioner fails
to cite authority for such relief, and we find none exists. Further, if we were to follow
Petitioner‟s request, virtually any post-conviction petitioner with a deceased trial counsel
would be automatically entitled to a new trial.2

                                          Conclusion
       Petitioner has failed to satisfy his burden to show that trial counsel was ineffective.
He is not entitled to relief. The judgment of the post-conviction court is affirmed.3


                                                                __________________________
                                                                TIMOTHY L. EASTER, JUDGE




       2
           The State comments that “[a]s a policy matter, it would be the wrong message to future
petitioners—some of whom will have been convicted of taking life, such as the petitioner; . . . —that
having defense counsel deceased paves a smoother road to post-conviction relief.” We agree.
       3
           In this appeal, Petitioner has abandoned several claims on appeal. Accordingly, those issues
have not been addressed. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL
3430151, at *6 n.2 (Tenn. Crim .App. Oct. 26, 2009) (“[W]hile the Petitioner raised additional issues in
his petition for post-conviction relief, he has abandoned those issues on appeal”).


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