         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 24, 2007

              EDWARD L. WILLIAMS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Knox County
                        No. 80700    Richard R. Baumgartner, Judge



                    No. E2006-02408-CCA-R3-PC - Filed October 17, 2007



Following a jury trial, the petitioner, Edward L. Williams, was convicted of premeditated first degree
murder and especially aggravated robbery. The trial court imposed consecutive sentences of life for
the murder conviction and twenty-two years for the especially aggravated robbery conviction. On
direct appeal, this court remanded for entry of an amended judgment reflecting a sentence of life with
the possibility of parole and deleting any reference to a merger of the premeditated murder count and
the felony murder count. The court further ordered that the sentences run concurrently rather than
consecutively. The judgment of the trial court was otherwise affirmed. State v. Edward L. Williams,
No. E2002-00325-CCA-R3-CD, 2003 WL 22462533 (Tenn. Crim. App. at Knoxville, Oct. 31,
2003), perm. app. denied (Tenn. Dec. 19, 2005). The petitioner filed a timely petition for
post-conviction relief which the post-conviction court subsequently denied after an evidentiary
hearing. The petitioner now appeals. In this appeal, the petitioner contends that his trial counsel was
ineffective. Following a thorough review of the record and the applicable law, we affirm the
judgment of the post-conviction court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and D. KELLY
THOMAS, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Edward L. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr. and G. Scott Green,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                        I. BACKGROUND
On direct appeal, this court summarized the relevant facts of the case as follows:

         This case arises from the robbery and murder of twenty-two-year-old Theonda
Williams on February 16, 1999. The defendant was fourteen years old at the time.
Although the defendant and the victim have the same last name, they were not
related.

        Frank Williams, the brother of the victim, testified that on the evening of
February 16, 1999, he was at the victim’s residence with the victim, the victim’s
girlfriend, Tamisha Shervington, the defendant, the defendant’s brother, and Ms.
Shervington’s mother. He stated the victim and the defendant were drinking alcohol
and smoking marijuana. Mr. Williams testified that at approximately 11:05 p.m., he
asked the victim to drive him to his residence, while the defendant also asked the
victim to drive him to another destination. He stated that prior to entering the
vehicle, several men drove up to the residence; the defendant retrieved a revolver
from his pocket; and the men drove away.

        Mr. Williams testified the victim drove a white Oldsmobile with a “nice”
stereo. The victim and the defendant argued regarding the type of music to play, but
neither made any threats during this time. He testified the victim did not possess a
firearm that evening. He further testified that upon arriving at his residence, the
victim then left with the defendant.

        Tamisha Shervington testified the defendant was a neighbor, and that the
victim became friends with the defendant. She testified that on February 16, 1999,
between midnight and 1:00 a.m., the victim, Frank Williams, and the defendant left
her residence in the victim’s white Oldsmobile. She stated the vehicle contained a
compact disc player with speakers in the trunk. She further stated that when she last
saw the vehicle, it was not damaged, and the stereo was intact and operational.

        Marcus Thomas testified that on February 17, 1999, after speaking to the
defendant’s sister, Tiffany Jones, he drove her around the Mechanicsville area of
Knoxville, in his blue Honda Accord searching for the defendant. He stated they
observed the victim’s car with a flat tire and bullet hole in the driver’s side window
parked in front of a house. He parked his vehicle behind the car, and the defendant
exited the house minutes later.

       Mr. Thomas testified Tiffany Jones informed the defendant that a news
program had reported that the victim was dead. The defendant then explained he had
been searching for the victim earlier that day and observed the victim’s vehicle
parked on Boyd’s Bridge Pike. The defendant stated that when he saw no one inside
the vehicle, he drove the vehicle around the area searching for the victim.



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        Mr. Thomas stated the defendant retrieved articles of clothing from
underneath the seats of the vehicle. The defendant then attempted to open the trunk
of the vehicle with a key. However, the defendant explained the lock was broken,
and the trunk would not open. Mr. Thomas testified the defendant then moved the
vehicle to another location and removed clothing and compact discs from the vehicle.

        Mr. Thomas testified he drove the defendant and his sister to the defendant’s
residence where they were stopped by several police officers. He stated that when
the officers activated their blue lights, the defendant instructed him not to stop
because he was “on the run.” The defendant also instructed his sister to hold a box
of bullets. Mr. Thomas testified that upon consenting to a search of his vehicle, the
officers retrieved a firearm, a box of bullets, and a set of keys which did not belong
to him.

        Officer Felix Voss of the Knoxville Police Department testified that upon
retrieving the white Oldsmobile, he observed that the radio was missing, the driver’s
side window was damaged, and the trunk appeared to have been “pried open.”
Officer Daniel Crenshaw testified that fingerprints lifted from the passenger side
interior window of the vehicle matched the defendant’s fingerprints. Blood was
discovered on the interior driver’s side door within a foot of a bullet hole.

        Officer Tony Willis testified he was dispatched to Robert Huff Road where
he observed the victim’s body lying face down in a ditch on the side of the road.
Officer Willis testified he and Detective Bennie French went to the defendant’s
residence and observed the defendant sitting in the back seat of the blue Honda
Accord. Upon taking the defendant into custody and obtaining consent to search the
vehicle, the officer found a .38 caliber pistol with five rounds in the area where the
defendant had been sitting, a box of .38 ammunition in the floorboard, and a set of
keys. Officer Thomas Evans testified the firearm discovered in the blue Honda was
a .38 caliber revolver which contained five shells.

       Detective Bennie French testified that upon taking the defendant into custody,
the defendant waived his Miranda rights and made a statement. The defendant
admitted he shot the victim while on Boyd’s Bridge Pike. He stated he believed the
victim intended to harm him because he “could see it in his eyes” and the victim
“came up on [him].” He indicated he did not see the victim with a firearm and never
informed the officers that the victim attacked him with a speaker.

       Detective French testified he interviewed Tiffany Jones, who stated that the
defendant and the victim had argued and were “talking about violence to each other.”
She informed the detective that when the officers approached the blue Honda, the
defendant attempted to give her a box of ammunition, but she laid them on the floor



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on the front passenger’s side. She stated the defendant also attempted to give her a
set of keys, but she placed them in between the seats of the vehicle.

        TBI Agent Don Carman, an expert in firearms identification, testified the
firearm found by the officers was a double-action .38 caliber revolver. He explained
an individual could fire the revolver in single-action mode, but he or she must first
cock the hammer before pulling the trigger. He stated approximately three and
one-half pounds of pressure was required to pull the trigger in single-action mode,
while approximately twelve pounds of pressure was required to pull the trigger in
double-action mode. Agent Carman opined that once the gun was fired, a second
shot could not be accidental. He stated he also tested a .38 caliber Winchester bullet
taken from the victim’s body and concluded the bullet was fired from the revolver
discovered in the Honda.

       Dr. Sandra Elkins, the medical examiner, testified that on February 17, 1999,
she reported to a crime scene on Robert Huff Road where she observed the victim’s
body lying face down with his arms outstretched over his head and his pants pulled
below his knees. Dr. Elkins stated the victim was five feet, eight inches tall and
weighed 140 pounds. She further stated the victim had a blood-alcohol level of .13,
and there were no drugs found in his system.

        Dr. Elkins conducted an autopsy of the victim’s body and discovered two
gunshot wounds. She stated one of the bullets entered the right side of the victim’s
head and exited through the other side. Based upon the gunshot residue found
embedded in the skin around the entrance wound, Dr. Elkins estimated the gun was
fired from a distance of twelve to twenty-four inches from the victim’s head. Based
upon the gunshot residue found on the victim’s shirt around the chest wound, Dr.
Elkins estimated the gun was fired from a distance of twelve inches or less from the
body. Dr. Elkins further opined either of the wounds would have been fatal.

        Tiffany Jones, the defendant’s sister, testified that approximately one and
one-half weeks prior to the victim’s death, the victim threatened her and the
defendant with a firearm. She stated the victim was intoxicated at the time, and when
the victim was intoxicated, he suffered from “mood swings.” She further stated the
victim believed the defendant and the victim’s girlfriend were involved in a
relationship, and he threatened to kill the defendant on other occasions. She denied
the defendant ever threatened the victim. She stated that on the night of February 16,
1999, she was at the victim’s residence and observed that he was intoxicated. She
further stated she did not see the defendant with a gun that night and that the
defendant was afraid of the victim.

       Garrett Jones, the defendant’s brother, testified that on a prior occasion, the
victim threatened the defendant with an automatic weapon while at the victim’s


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       residence. He stated the victim had been intoxicated and was “mean” when he drank
       alcohol.

               The defendant testified the victim was a neighbor, whom he occasionally
       visited. He stated that on one occasion, the victim, who was intoxicated, threatened
       him with a gun.

               The defendant testified that on February 16, 1999, between 11:00 p.m. and
       midnight, he went to the victim’s residence and asked the victim to drive him to a
       friend’s house. He stated the victim was intoxicated and continued to drink alcohol
       while driving. The defendant testified that after dropping Frank Williams off at his
       residence, they drove down Boyd’s Bridge Pike where the victim accused him of
       having a relationship with his girlfriend. The victim became upset and came at the
       defendant with a speaker. The defendant stated he was afraid and produced a gun
       from his pocket. The defendant testified he then fired two consecutive shots, the first
       of which hit the victim’s chest. He maintained he “didn't mean to shoot” but was
       afraid for his life.

               The defendant testified that after he shot the victim, he placed the victim’s
       body on the side of the road and drove the vehicle to Mechanicsville in order to “get
       away from the scene.” He stated another man later took the stereo from the vehicle.
       He further stated Mr. Thomas attempted to open the trunk of the victim’s vehicle
       with a crowbar and then took the keys.

              The jury convicted the defendant of premeditated first degree murder and
       especially aggravated robbery.

       Williams, 2003 WL 22462533 at *1-4.

                             II. POST-CONVICTION HEARING

        At the post-conviction hearing, trial counsel testified that he had worked as an attorney for
ten years and that eighty-five percent of his cases were criminal defense matters. He stated that he
had previously handled first degree murder cases. Trial counsel recounted that he had fully
investigated the case, which included an examination of the state’s case against the petitioner, the
forensic evidence from inside the victim’s car, and the petitioner’s confession.

        Trial counsel testified that the state had a strong case against the petitioner. Specifically,
trial counsel stated:

              This case didn’t have a lot of holes in it, as I could find out. We had a
       confession. He was caught with the weapon that was used in the shooting.
       Witnesses put him at or near the scene. They put him with the person right before


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        the shooting, and like I said, then we had a videotaped confession. It wasn’t the best
        case I’ve ever seen.

        Trial counsel stated that he had discussed and agreed on a trial strategy with the petitioner
to attack the state’s case, “every chance he got.” Trial counsel succeeded in having the petitioner’s
confession suppressed unless and until the petitioner testified at trial, in which case it would be
introduced. Trial counsel testified that prior to trial, no decision had been made as to whether or not
the petitioner would testify.

        Trial counsel and the petitioner made the decision to let the petitioner testify on his own
behalf after the testimony of several supporting defense witnesses hurt, rather than helped the
petitioner’s case. The stated goal was to argue self-defense and try to resolve inconsistencies in the
testimony of the preceding defense witnesses. However, trial counsel stated he was aware that if the
petitioner testified, he would have to admit to shooting the victim twice, which would cause other
problems for the petitioner’s case.

         The petitioner, through post-conviction counsel, argued that trial counsel chose the wrong
trial strategy. Specifically, petitioner asserted that trial counsel should not have attacked the state’s
case in hopes of proving the petitioner was not the shooter when the weight of the evidence and
petitioner’s own confession indicated the opposite. Petitioner argued that trial counsel should have
conceded that petitioner was the shooter and argued instead that his actions were undertaken in self-
defense. Petitioner argued that trial counsel erred by first asserting that the petitioner was not the
shooter and then subsequently arguing that the petitioner did shoot the victim. Petitioner argued that
by adopting these contradicting theories, trial counsel resorted to inconsistent theories of the case
that undermined the petitioner’s defense and caused it to ultimately be ineffective.

        Petitioner further argued that if trial counsel had initially asserted a theory of self-defense and
attempted to convince jurors that he deserved something less than first degree murder, such as
voluntary manslaughter, the weight of the culpable evidence against the petitioner could have been
mitigated. The petitioner argued that the victim, an older individual, had threatened the petitioner
before with a weapon, that there had been an argument in the vehicle, and that the victim had hit the
petitioner with a speaker to which the petitioner reacted “spontaneously under those circumstances”
in an act of self-defense.

        The post-conviction court denied relief and determined that trial counsel’s strategy of
“attacking each and every element of the state’s case” was not ineffective assistance of counsel. The
court accredited the testimony of trial counsel and noted that trials are a “a fluid matter,” and
decisions to change strategies or to argue alternative theories are frequently employed. Furthermore,
the court also noted that the jury was presented with first degree murder and lesser-included charges
and was able to evaluate and weigh the evidence as it saw fit. After specifically addressing the
petitioner’s allegations, the court found that the petitioner failed to prove his allegations by clear and
convincing evidence and thereby denied relief.



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                                          III. ANALYSIS

        In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the
allegations set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such as
findings concerning the credibility of witnesses and the weight and value given their testimony, is
de novo with a presumption that the findings are correct. Id. Our review of the post-conviction
court’s legal conclusions and application of law to facts is de novo without a presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

        In order to establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense, rendering the outcome unreliable or fundamentally unfair. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).
Deficient performance is shown if counsel’s conduct fell below an objective standard of
reasonableness under prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should be within the
range of competence demanded of attorneys in criminal cases). A fair assessment of counsel’s
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; see also Nichols v. State, 90 S.W.3d
576, 587 (Tenn. 2002). Deference is made to trial strategy or tactical choices if they are informed
ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that
a particular strategy or tactical decision failed does not by itself establish ineffective assistance of
counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that
counsel’s representation fell below a reasonable standard, the petitioner must also prove prejudice.
Prejudice is shown if, but for counsel’s unprofessional errors, there is a reasonable probability that
the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. Both
deficient performance and prejudice must be established to prove ineffective assistance of counsel.
Strickland, 466 U.S. at 697. If either element of ineffective assistance of counsel has not been
established, a court need not address the other element. Id. In considering claims of ineffective
assistance of counsel, “[w]e address not what is prudent or appropriate, but only what is
constitutionally compelled.” United States v. Cronic, 466 U.S. 648, 665 n. 38 (1984).

        On appeal, the petitioner contends that he received the ineffective assistance of his trial
counsel. In particular, the petitioner claims that trial counsel was ineffective in his choice of trial
strategy by not conceding that petitioner was the shooter of the victim and instead arguing that the
petitioner’s actions were undertaken spontaneously, in self-defense. The petitioner submits that trial
counsel’s decision to first attack the state’s evidence at every opportunity, and then attempt to argue
self-defense once the petitioner took the stand, resulted in a strategy that was inconsistent and
undermined any chance the petitioner had to mitigate the weight of the evidence against him.


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         Upon review, it is clear that the record does not preponderate against the post-conviction
court’s findings. The post-conviction court, in rendering its judgment, found that it is a frequent and
often-employed strategy to argue alternative theories of a case. Further, the post-conviction court
noted in its ruling that the jury was presented with the first degree murder charge and lesser-
included-offenses, and had the option to weigh the petitioner’s arguments that he was not the
shooter, or in the alternative, acted only in self-defense. It is well-settled in Tennessee that
alternative theories of a case may be presented to the jury. Tenn. Code Ann. § 40-18-112; see also
State v. Young, No. 01C01-9605-CC-00208, 1998 WL 258466 at *5 (Tenn. Crim. App. at Nashville,
May 22, 1998). Therefore, the actions of trial counsel were not deficient. Under the test set forth
in Strickland, both prongs must be met, and if petitioner fails to prove one prong, relief may be
denied. Because the petitioner has failed to demonstrate that trial counsel’s actions were deficient
under the first prong of the Strickland test, he is thereby unable to prove that there was any resulting
prejudice and our analysis need not proceed any further. Accordingly, we conclude that the
petitioner has failed to show either deficient performance by counsel or resulting prejudice, and the
issue is without merit.

                                          CONCLUSION

        The petitioner has failed to meet his burden of proof regarding his claims of ineffective
assistance of counsel and the post-conviction court correctly denied the petition. Therefore, the
judgment of the post-conviction court is affirmed.




                                                       ___________________________________
                                                       J.C. McLIN, JUDGE




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