                                                                                           07/26/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 27, 2017

            MARQUIS D. HENDRICKS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                     No. 105618 Steven Wayne Sword, Judge
                     ___________________________________

                            No. E2016-02123-CCA-R3-PC
                       ___________________________________

The Petitioner, Marquis D. Hendricks, was convicted of first degree murder, attempted
first degree murder, possession of cocaine with intent to deliver, possession of cocaine
with intent to sell, and simple possession of marijuana. The Petitioner received an
effective sentence of life in prison for the convictions. The Petitioner filed a petition for
post-conviction relief arguing that he received ineffective assistance of counsel because
trial counsel failed to argue and request jury instructions on the statutory defenses of
duress and necessity. Following a hearing, the post-conviction court found that there was
no deficient performance by trial counsel because the facts did not support either
statutory defense and denied the petition. After a thorough review of the record, we
affirm the post-conviction court’s denial of relief.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Marquis D. Hendricks.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Charme Allen, District Attorney General; and Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                            Factual and Procedural History

        A Knox County jury found the Petitioner guilty of first degree murder, attempted
first degree murder, possession of cocaine with intent to deliver, possession of cocaine
with intent to sell, and simple possession of marijuana, and the trial court imposed a
sentence of life imprisonment in the Tennessee Department of Correction. See State v.
Marquis Dashawn Hendricks, E2013-00346-CCA-R3-CD, 2014 WL 1330184, at *3
(Tenn. Crim. App. Apr. 3, 2014), perm. app. denied (Tenn. Sept. 18, 2014). On direct
appeal, this court summarized the facts, as follows:

            The facts giving rise to [the Petitioner]’s indictment and ultimate
      convictions arose from events that took place in Knoxville between
      November 12 and 13, 2012.

             Nathaniel Bolding and Keith Hammock, brothers-in-law, lived in
      Lake City at the time of the incidents. Mr. Bolding, his wife, and two
      children shared a home in Lake City with his mother-in-law, Mr.
      Hammock, and Mr. Hammock’s daughter. Mr. Hammock and Mr. Bolding
      were also good friends with a penchant for partying, drinking, and drug use.
      Mr. Bolding first established a relationship with [the Petitioner] when he
      lived at the Lonsdale housing project in Knoxville before moving to Lake
      City. In order to purchase crack cocaine from [the Petitioner], Mr. Bolding
      renewed his relationship with [the Petitioner] several weeks prior to the
      incidents that took place in November of 2012.

             At some point between the evening of November 12 and the
      morning of November 13, 2012, Mr. Hammock and Mr. Bolding went from
      Lake City to Knoxville several times to purchase drugs from [the
      Petitioner]. During one of the transactions, both Mr. Hammock and Mr.
      Bolding were shot as they were driving away from the purchase place. Mr.
      Hammock died as a result of his wounds. Mr. Bolding was shot in the right
      arm.

            As a result of a police investigation, [the Petitioner] was indicted by
      the Knox County Grand Jury in February of 2013 for first degree murder,
      attempted first degree murder, delivery of less than .5 grams of cocaine
      while employing a deadly weapon, possession of more than .5 grams of
      cocaine with intent to sell, and possession of more than one-half ounce but
      not more than ten pounds of marijuana with intent to sell. The case
      proceeded to trial.

            At trial, Nathaniel Bolding testified. At the time of trial, he was
      twenty-nine years old and lived and worked at a rehabilitation center in
      Jacksonville, Florida. Mr. Bolding recalled his relationship with his
      deceased brother-in-law, Mr. Hammock. He explained that the two men
                                          -2-
were good friends but that they were not good influences on each other
because they partied, drank, and used drugs together.

      About two weeks prior to Mr. Hammock’s death, Mr. Bolding took
Mr. Hammock to [the Petitioner]’s apartment to buy crack cocaine.

      Mr. Bolding recalled that the day prior to Mr. Hammock’s death,
Mr. Hammock traded [the Petitioner] a television worth $2,000 for $100
worth of crack cocaine. According to Mr. Bolding, [the Petitioner] only
gave them fifty dollars[’] worth of crack cocaine. Mr. Bolding and Mr.
Hammock smoked the crack cocaine.

       On the day of Mr. Hammock’s death, Mr. Hammock pawned a
pressure washer for cash. The men bought a bottle of tequila with the
money. Subsequently, the men went to [the Petitioner]’s apartment where
Mr. Hammock gave [the Petitioner] $100 so that he could get his television
back from [the Petitioner]. [The Petitioner] informed Mr. Hammock that
the television was at Chris Page’s house. When Mr. Bolding and Mr.
Hammock went to Mr. Page’s house, they did not find the television.

       At some point that same day, Mr. Hammock and Mr. Bolding
bought $80 of crack cocaine from [the Petitioner]. The men returned to
Lake City where they sat around a fire and smoked crack cocaine and
marijuana. The marijuana was purchased from Chris Page earlier that same
day. The men eventually ran out of crack cocaine so they decided to drive
to Knoxville to purchase more crack cocaine. Mr. Hammock called [the
Petitioner]. The men went back to Knoxville around 10:30 p.m. They
bought another $80 worth of crack cocaine and smoked it on the way back
to Lake City.

       Desperate for more drugs, the men decided to return to Knoxville
once more to purchase crack cocaine from [the Petitioner]. According to
Mr. Bolding, the men had approximately thirty dollars between the two of
them. They arrived on Texas Avenue at around 1:30 a.m. [The Petitioner]
sold them more crack cocaine. The men returned to Lake City where they
smoked the crack cocaine and drank the rest of the tequila. While they
were drinking and using drugs, Mr. Hammock became agitated as he
thought about the television that he lost to [the Petitioner]. The more upset
Mr. Hammock became, the more he wanted to return to Knoxville.



                                    -3-
             At some point during the night or early morning, Mr. Bolding stated
      that the two men left Lake City again to go to the meth[a]done clinic in
      Knoxville. When they left town, Mr. Bolding drove the car because Mr.
      Hammock was too intoxicated to drive. The men decided that they would
      purchase more crack cocaine from [the Petitioner] and if [the Petitioner] did
      not return the television to Mr. Hammock[,] they would drive off without
      paying for the drugs.

             As the men approached [the Petitioner]’s apartment in their car, [the
      Petitioner] came out to meet the car. [The Petitioner] leaned over and
      handed the drugs to Mr. Hammock, in the passenger seat. When Mr.
      Hammock asked [the Petitioner] for his television, [the Petitioner] told him
      that he did not have the television. Mr. Hammock instructed Mr. Bolding
      to drive away. As they drove away, [the Petitioner] said, “don’t do it bitch”
      before pulling a pistol from his waistband and firing it at the car.

              According to Mr. Bolding, the car had traveled about ten to fifteen
      feet when he heard three shots. Mr. Hammock immediately slumped over
      in the seat and knocked the car into neutral. Mr. Bolding tried to put the car
      into drive when he realized that he had been shot in the right arm. He had
      to use his left arm to shift the car into drive. Mr. Bolding tried to drive the
      car to the interstate to get Mr. Hammock to the hospital. As he approached
      Merchants Road, Mr. Bolding got dizzy and pulled off the road. At this
      point, Mr. Hammock was unresponsive. Mr. Bolding left the car, ran to a
      gas station, and had someone call 911. Mr. Hammock was deceased by the
      time officers arrived on the scene. He suffered two wounds to the face that
      were not fatal and a gunshot wound to his back that hit a rib, entered his
      lung, and then hit the superior vena cava and aorta. Mr. Hammock died
      approximately one minute after being shot.

Marquis Dashawn Hendricks, 2014 WL 1330184, at *1-3.

                          Post-Conviction Proceedings

       The Petitioner timely filed a pro se “Petition for Post-Conviction Relief,”
claiming that he received ineffective assistance of counsel because he had “viable
self-defense, duress and adequate provocation claim[s],” for which trial counsel
failed to request jury instructions. The petition contained numerous other
rambling, incoherent claims of ineffective assistance of counsel. After post-
conviction counsel was appointed, counsel filed a “Notice,” stating that counsel
“has concluded that no basis exists to support any claims that trial counsel was
                                           -4-
ineffective in this case. Counsel does not intend to file any Amended Petition in
this case.” Thereafter, the Petitioner filed a motion for dismissal of appointed
counsel, which was granted by the post-conviction court, and current post-
conviction counsel was appointed. An “Amended Petition for Post-Conviction
Relief” was filed, claiming that trial counsel provided ineffective assistance by
failing to request jury instructions on the statutory defenses of duress and
necessity. The Amended Petition stated, “This petition includes all claims
presently known to the Petitioner’s counsel for granting post-conviction relief.
The Petitioner’s pro se petition includes additional grounds which, after a review
of the record, the Petitioner’s counsel does not find to be supportable by the
available facts, evidence and law.”

      The Petitioner called trial counsel as his only witness at the evidentiary hearing on
August 25, 2016. Trial counsel testified that he was appointed to represent the Petitioner
and that he obtained approval to employ an investigator. Trial counsel testified that he
had been practicing law since 1997 and that one hundred percent of his practice was
devoted to criminal defense. He stated that he had represented thousands of criminal
defendants and had been involved in hundreds of jury trials in state and federal court.

       Trial counsel and the investigator met with the Petitioner numerous times. Trial
counsel conducted a preliminary hearing and received discovery from the State. He
developed a self-defense strategy based on the information he received from the
Petitioner, which he summarized as follows:

       [The victims] went down and did a U-turn and came back to put the guy
       who got shot closest to [the Petitioner]. [The Petitioner] leaned in with the
       drugs. The guy snatched it out of his hand. At the same time, [the
       Petitioner] was wearing a hoodie, I think, believe the time was in the
       winter, pulled on it and pushed something against his chest or throat, in that
       area, and he believed it to be a weapon, and that the fellow had not only
       offered to sell a gun before but had offered to sell him a gun, if I’m not
       mistaken, earlier that day, and that’s when he was afraid that he was going
       to be shot and robbed, and that he pulled out his weapon, was stepping
       backwards and hit his heels against the curb, and that’s when he fired, and
       they pulled off.

        Trial counsel stated that he never considered a defense of duress or necessity
because he did not believe “that those [defenses] fit the facts,” and he did not recall
discussing the defenses of necessity or duress with the Petitioner. Trial counsel testified
that he discussed self-defense with the Petitioner “[a]t length” and that, at his request, the
trial court instructed the jury on self-defense.
                                            -5-
       The State called no witnesses, and after argument of counsel, the post-conviction
court took the matter under advisement.

        On September 22, 2016, the post-conviction court issued written “Findings of
Facts and Conclusions of Law.” The court found that trial counsel was “experienced and
skilled” and “spent considerable time preparing for trial and developing a trial strategy . .
. that was based primarily on statements of the [P]etitioner that he was retreating and
falling down when he shot at the victim.” The court further found that trial counsel did
not make a request for an instruction on either necessity or duress “because [trial counsel]
believed the facts did not support these instructions,” and his strategy was self-defense.
The post-conviction court found that “the facts as contained in the full record of the trial
support [trial counsel’s] assertion” and that trial counsel’s performance was not deficient.

                                      Analysis

       The Petitioner asserts that he was denied the effective assistance of counsel
because trial counsel failed to argue and request jury instructions for duress and
necessity. The State argues that the post-conviction court properly dismissed the petition.
We agree with the State.

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s conclusions of law
and application of the law to factual findings are reviewed de novo with no presumption
of correctness. Kendrick, 454 S.W.3d at 457.

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn.
                                            -6-
Const. art. I, § 9. In order to receive post-conviction relief for ineffective assistance of
counsel, a petitioner must prove: (1) that counsel’s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not
satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review 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 Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “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); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is 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.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

                                     General Defenses

       The defenses of duress and necessity were formerly available at common law.
“With the enactment of the 1989 Criminal Code, all common law defenses were
abolished, and replaced by statutory defenses.” State v. Culp, 900 S.W.2d 707, 710
(Tenn. Crim. App. 1994), see Tenn. Code. Ann. § 39-11-203(e)(2).
                                            -7-
       Duress and necessity are not affirmative defenses that must be proven by a
defendant. Culp, 900 S.W.2d at 710. Both defenses provide a general defense which
must only be fairly raised by the proof before being considered by the trier of fact and
any reasonable doubt on the issue requires an acquittal. Tenn. Code Ann. § 39-11-
203(c), (d). “It is well-established in Tennessee that the trial court has the duty of giving
a correct and complete charge of the law applicable to the facts of the case and that the
defendant has the right to have every issue of fact raised by the evidence and material to
the defense submitted to the jury upon proper instructions by the trial court.” State v.
Green, 995 S.W.2d 591, 604-05 (Tenn. Crim. App. 1998) (citing State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990), cert. denied, 498 U.S. 1007 (1990); State v. Bryant, 654
S.W.2d 389, 390 (Tenn. 1983); and State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975)).

        Although the two defenses “are similar both in form and in the policy supporting
the availability of both defenses[,]” they serve different purposes. Id. at 606. Concerning
the differences in the two defenses, the United States Supreme Court stated:

       Common law historically distinguished between the defenses of duress and
       necessity. Duress was said to excuse criminal conduct where the actor was
       under an unlawful threat of imminent death or serious bodily injury, which
       threat caused the actor to engage in conduct violating the literal terms of the
       criminal law. While the defense of duress covered the situation where the
       coercion had its source in the actions of other human beings, the defense of
       necessity, or choice of evils, traditionally covered the situation where
       physical forces beyond the actor’s control rendered illegal conduct the
       lesser of two evils. Thus, where A destroyed a dike because B threatened
       to kill him if he did not, A would argue that he acted under duress, whereas
       if A destroyed the dike in order to protect more valuable property from
       flooding, A could claim a defense of necessity.

United States v. Bailey, 444 U.S. 394, 409-10 (1980) (citing Wayne LaFave & Austin
Scott, HANDBOOK ON CRIMINAL LAW 374-384 (1st ed. 1972)).

                                          Duress

      Duress is one of the general defenses codified in Part 5 of Chapter 11, Title 39 of
the Tennessee Code Annotated; specifically, section 39-11-504 provides:

             (a) Duress is a defense to prosecution where the person or a third
       person is threatened with harm that is present, imminent, impending and of
                                            -8-
       such a nature to induce a well-grounded apprehension of death or serious
       bodily injury if the act is not done. The threatened harm must be
       continuous throughout the time the act is being committed, and must be one
       from which the person cannot withdraw in safety. Further, the desirability
       and urgency of avoiding the harm must clearly outweigh the harm sought to
       be prevented by the law proscribing the conduct, according to ordinary
       standards of reasonableness.

             (b) This defense is unavailable to a person who intentionally,
       knowingly, or recklessly becomes involved in a situation in which it was
       probable that the person would be subjected to compulsion.

Tenn. Code Ann. § 39-11-504 (emphasis added). The Comments of the Tennessee
Sentencing Commission concerning section 39-11-504 state in part:

              Consistent with existing Tennessee law and a long history of Anglo-
       American tradition, this section recognizes the defense of duress. This rare
       defense is present when a defendant commits an offense because another person
       threatens death or serious injury if the offense is not committed.

Tenn. Code Ann. § 39-11-504, Sentencing Commission Comments. Even at common
law, the defense of duress “ha[d] no application in the case of homicide.” Mallicoat v.
State, 539 S.W.2d 54, 57 (Tenn. Crim. App. 1976) (quoting 22 C.J.S. Criminal Law §
44); see also State v. Robinson, 622 S.W.2d 62, 73 (Tenn. Crim. App. 1980) (“. . . the
trial judge would have been justified in instructing the jury that coercion or duress is not a
defense to the crime of homicide[]”).

       When the common law defense of duress was codified, the legislature included a
balancing test in section 39-11-504(a). See Tenn. Code Ann. § 39-11-504(a). By
requiring that the “desirability and urgency of avoiding the harm must clearly outweigh
the harm sought to be prevented,” the legislature preserved the exclusion of the defense
of duress in the case of homicide. See id. “The theory underlying this defense is that it is
better that the defendant commit the lesser harm than to lose his life.” David Louis
Raybin, 11 TENNESSEE PRACTICE, CRIMINAL PRACTICE & PROCEDURE § 28:54 (2016).
Committing a homicide would not be a lesser harm than losing one’s life, so the defense
of duress would not be available under the balancing test of section 39-11-504(a) in the
case of homicide.

       According to trial counsel, the Petitioner claimed that “he was afraid that he was
going to be shot and robbed[]” because one of the victims had offered to sell the
Petitioner a gun earlier that day. After handing the drugs to the victims, the Petitioner
                                            -9-
then stepped backwards, pulled out his gun, and shot towards the victims. The post-
conviction court correctly determined that facts did not support a jury instruction on the
defense of duress. The defense of duress would clearly have been inapplicable to the
Petitioner’s charge of first degree murder because, as explained above, the urgency of
harm to the Petitioner would not have outweighed the harm to the deceased victim.
Additionally, trial counsel was not deficient for failing to request a jury instruction on
duress for the Petitioner’s remaining charges; trial counsel’s strategy was to argue that he
acted in self-defense and this was a sound trial strategy based on the evidence presented
at trial. We will not second-guess a reasonable but ineffective trial strategy.
Granderson, 197 S.W.3d at 790. The Petitioner has failed to prove that trial counsel’s
failure to request a jury instruction on duress was “below an objective standard of
reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing
Strickland, 466 U.S. at 688).

                                             Necessity

       The common law defense of necessity, like self-defense, is grouped with the
defenses that provide a justification excluding criminal responsibility and are codified in
Part 6 of Chapter 11, Title 39 of our Code. Tennessee Code Annotated section 39-11-609
provides:

       Except as provided in §§ 39-11-611--39-11-616, 39-11-620 and 39-11-
       621,1 conduct is justified, if:

             (1) The person reasonably believes the conduct is immediately
       necessary to avoid imminent harm; and

             (2) The desirability and urgency of avoiding the harm clearly
       outweigh the harm sought to be prevented by the law proscribing the
       conduct, according to ordinary standards of reasonableness.

Tenn. Code Ann. § 39-11-609 (emphasis added). The Comments of the Tennessee
Sentencing Commission concerning section 39-11-609 state, in part:

               This section codifies the common law defense of necessity. It
       excuses criminal liability in those exceedingly rare situations where
       criminal activity is an objectively reasonable response to an extreme
       situation. For example, the necessity defense would bar a trespass


       1
           None of the exceptions are applicable to the issues in this appeal.
                                                    - 10 -
       conviction for a hiker, stranded in a snowstorm, who spends the night in a
       vacant cabin rather than risking death sleeping in the open.

              The defense is limited to situations: (1) where the defendant acts
       upon a reasonable belief that the action is necessary to avoid harm; and (2)
       where the harm sought to be avoided is clearly greater than the harm
       caused by the criminal act. The defense is further limited in application to
       those offenses where it is not expressly excluded by statute.

Tenn. Code Ann. § 39-11-609, Sentencing Commission Comments (emphasis added).

      “Necessity has traditionally been used appropriately when the extreme situation is
brought on by something other than a human act.” State v. Davenport, 973 S.W.2d 283,
287 (Tenn. Crim. App. 1998) (citing Neil P. Cohen, et al., Prevalence and Use of
Criminal Defenses; A Preliminary Study, 60 Tenn. L. Rev. 957, 966 (1993)). Under
common law, the defense of necessity had application in the case of homicide; for
example:

       [W]here two persons being shipwrecked, have got on the same plank, but
       finding it not able to save them both, one thrusts the other from it, and he is
       drowned, this homicide is excusable, through unavoidable necessity, and
       upon the great universal principle of self-preservation, which prompts every
       man to save his own life, in preference to that of another, when one of them
       must inevitably perish.

See Smith v. Brazelton, 48 Tenn. 44, 51 (1870) (internal citation omitted)

        When the common law defense of necessity was codified, the legislature included
in section 39-11-609(2) the identical balancing test that it included in section 39-11-
504(a). See Tenn. Code Ann. § 39-11-609(2). The defense of necessity is predicated on
the theory that it is better to allow a crime to go unpunished where the crime was
committed to avoid a greater and more serious harm[.]” David Louis Raybin, 11
TENNESSEE PRACTICE, CRIMINAL PRACTICE & PROCEDURE § 28:59 (2016). This theory
is echoed language in the Sentencing Commission Comments cited above: “The defense
is limited to situations[] . . . where the harm sought to be avoided is clearly greater than
the harm caused by the criminal act.” Tenn. Code Ann. § 39-11-609(2), Sentencing
Commission Comments. Assuming that death is the maximum harm that an individual
can suffer, the harm resulting from a homicide can never be less that the harm sought to
be avoided by a defendant. See Tenn. Code Ann. § 39-11-609(2).



                                           - 11 -
        Thus, the statutory defense of necessity arguably has no application in the case of
homicide, and therefore, trial counsel was not deficient in failing to request a jury
instruction for necessity. However, it is not necessary for this court to go that far in
determining that the Petitioner’s claim must fail. First, the “extreme situation” the
Petitioner claimed he faced was not “brought on by something other than a human act.”
Davenport, 973 S.W.2d at 287. Instead, the Petitioner created the allegedly harmful
situation by selling illegal drugs and because he feared harm from the victims. Second,
based on the information provided by the Petitioner and based on the investigation
conducted by trial counsel and his investigator, counsel decided on a trial strategy
claiming the Petitioner acted in self-defense. Trial counsel discussed self-defense with
the Petitioner “[a]t length.” The trial court instructed the jury on self-defense. Trial
counsel’s strategy was reasonable and sound, and we will not grant relief based on a
sound, yet ultimately unsuccessful, tactical decision. Granderson, 197 S.W.3d at 790.
The Petitioner has failed to prove that counsel’s failure to request a jury instruction on
necessity was “below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688).

                                       Conclusion

      Accordingly, the Petitioner is not entitled to relief in this appeal. The post-
conviction court’s judgment dismissing the petition for post-conviction relief is affirmed.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




                                          - 12 -
