        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 6, 2014

               MONTREL GILLIAM v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                        No. 07-00648   Lee V. Coffee, Judge


                 No. W2013-01187-CCA-R3-PC - Filed June 25, 2014


The Petitioner, Montrel Gilliam, appeals from the denial of post-conviction relief by the
Criminal Court for Shelby County. He was convicted of first degree premeditated murder
and three counts of attempted first degree murder and received an effective sentence of life
imprisonment plus sixty-seven years in the Tennessee Department of Correction. On appeal,
the Petitioner argues that he received ineffective assistance of counsel. Upon our review, we
affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

R. Todd Mosley (on appeal) and James P. DeRossitt, IV (at hearing), Memphis, Tennessee,
for the Petitioner-Appellant, Montrel Gilliam.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                        OPINION

       The underlying facts supporting the Petitioner’s convictions stem from ongoing
tension between residents of Ridgecrest Apartments and Douglas Community in Memphis,
Tennessee. On the day of the offense, Latasha Mims, who was born and raised in the
Douglas Community, was visiting a friend, Marsha Patten, in the Ridgecrest Apartment
Complex. Mims had been threatened earlier in the day by a man, later identified as the
Petitioner, who told her, “Bitch, you going to get got tonight.” Later that night, Patten and
her boyfriend, Alexander Collier, left the Ridgecrest Apartments to go to the store. As they
were driving down Woodcliff Road, they heard gunshots. A bullet came through the driver’s
door, shattered the glass, and struck Collier in the thigh. A playground area was located
south of Woodcliff Road between the location of the apartment complex and the origin of
the gunshots. Four-year-old Donttreius Taylor was shot in the arm, and eleven-year-old
Martez Henderson was fatally shot and killed. Mikeisha Holmes testified at trial that she
observed the Petitioner “raise[] his gun and fire[] four gunshots at a car that was traveling
down the street.” The Petitioner was convicted as charged, and the trial court imposed an
effective sentence of life imprisonment plus sixty-seven years for the four convictions, which
was affirmed by this court on appeal. State v. Montrel Gilliam, No. W2009-01664-CCA-R3-
CD, 2011 WL 1744226 (Tenn. Crim. App. May 4, 2011), perm. app. denied (Tenn. Aug. 24,
2011).

       On June 4, 2012, the Petitioner filed a timely pro se petition for post-conviction relief,
alleging six claims for relief based on ineffective assistance of counsel. The Petitioner was
subsequently appointed counsel, who filed two amended petitions on the Petitioner’s behalf.
The Petitioner, Tristan Dorsey, trial counsel, and co-counsel testified at the March 27, 2012
post-conviction hearing.1

        Post-Conviction Hearing. The Petitioner testified that trial counsel and co-counsel
represented him at his murder trial. He said he met with trial counsel “about five times” and
that trial counsel did not involve him in the defense. He stated that on the day of the
shooting, he spent half the day with Tristan Dorsey because it was Dorsey’s birthday. He
said they spent most of their time in Dorsey’s car and that they returned to the Ridgecrest
Apartments at 5:00 p.m. The Petitioner recalled that Latasha Mims testified for the State at
trial. He said he never threatened Mims that day but that he spoke to her in a joking manner
and that Dorsey was present. He stated that his investigator, Rachael Geiser, had identified
Dorsey as a positive witness for the defense. The Petitioner said that Dorsey was available
at trial but that he never testified. He faulted trial counsel for not presenting Dorsey’s
testimony. He said that trial counsel told him that Dorsey was not a good witness because
he had pending charges.

        The Petitioner testified that on the day after the shooting, Mikeisha Holmes was
interviewed in a television news report and that her face was blurred out. He stated that
Holmes told the reporters, “‘Whoever the shooter was, he wasn’t trying to shoot no kids[.]’”
He said he knew the woman in the interview was Holmes because he “used to date her.” He
stated that Holmes was hostile toward him because she discovered that he was dating another


        1
          We only address the testimony from the hearing relevant to the issues that the Petitioner raised in
his appellate brief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation
to authorities, or appropriate references to the record will be treated as waived in this court.”).

                                                    -2-
woman. The Petitioner told trial counsel about the television interview. He said that trial
counsel told him that the video could not be used to cross-examine Holmes because the
woman’s face was not visible.

       The Petitioner acknowledged that trial counsel visited the Ridgecrest Apartments on
multiple occasions. However, he believed that trial counsel should have conducted a more
thorough investigation and interviewed more witnesses about the shooting. Because there
were different shell casings found at the crime scene, the Petitioner opined that trial counsel
could have discovered other suspects. He maintained that he did not shoot anyone on the
night of June 22, 2006, and that he “didn’t even have a handgun.”

        On cross-examination, the Petitioner acknowledged that trial counsel had confronted
Mikeisha Holmes about the news report and that Holmes denied being interviewed. He
stated that trial counsel should have played the video for the jury at that point because it was
obvious that the woman was Holmes. He agreed that there are rules of evidence, but he
believed that trial counsel could have entered the video into evidence. The Petitioner did not
recall that his investigator had noted in her analysis that Tristan Dorsey had seen him with
a gun on prior occasions. He agreed that it would be damaging to his case to have a defense
witness testify that the Petitioner was a close friend and that the Petitioner had a gun.

       Tristan Dorsey testified that he grew up with the Petitioner in the Ridgecrest
Apartments. He stated that June 22, 2006, was his birthday and that he spent most of the day
with the Petitioner. He saw Latasha Mims that day but denied that the Petitioner threatened
Mims. He said he dropped the Petitioner off when he had to pick up his friend from work.
Dorsey did not see the Petitioner with a gun that day, and he had no reason to believe that the
Petitioner had any problems with anyone.

       On cross-examination, Dorsey acknowledged that he had prior convictions for various
drug offenses and that he violated his probation. He said he had carried a gun before but
denied having a gun on the day of the shooting. He testified that he had never seen the
Petitioner with a gun in his hand. Dorsey denied that he was selling drugs that day. He said
the Petitioner was “a good kid” and not a troublemaker. He stated that he had never seen the
Petitioner get into a fight with anyone.

        Upon questioning from the post-conviction court, Dorsey testified that he was not
present when the shooting occurred. He said he dropped the Petitioner off around 5:00 or
6:00 p.m. and that he did not know what the Petitioner was doing later that evening. He
stated that when he told the investigator that he had seen the Petitioner with a gun before, he
meant that they have “been around guns all the time” in their neighborhood but that he had
never seen the Petitioner with a gun in his hand. Dorsey stated that Holmes could not have

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witnessed the shooting from where she claimed to have been and that there was a direct view
of the playground from the hallway where everyone was hanging out.

         The State called trial counsel after the close of the Petitioner’s proof. Trial counsel
testified that he began practicing law in October of 1997. Since then, he had handled
approximately forty first degree murder cases. He said that about thirty of those cases went
to trial. He stated that he was capital-certified in Tennessee. Trial counsel was appointed
to the Petitioner’s case in June of 2007. He said he requested an investigator within a week
of his appointment and that he asked co-counsel to assist with the case. Because the trial
began on May 18, 2009, he had the case for nearly two years. He stated that there was
“ample opportunity to investigate all the witnesses.” He said that he would meet with the
investigator and the Petitioner to discuss the investigation and that the defense called all the
witnesses that were helpful. He said that he and the Petitioner “got along very well.” He did
not recall having any disagreements with the Petitioner during the trial. He stated that it was
his practice to consult with the client, the investigator, and co-counsel regarding the need for
further questions before concluding any cross-examination.

       Trial counsel said that the defense subpoenaed Tristan Dorsey. He stated that Dorsey
had pending charges or convictions at that time. According to counsel, Dorsey’s “sole
purpose” was to testify that the Petitioner did not have a gun on June 22, 2006. He recalled
questioning Dorsey in a witness room next to the courtroom at trial. He stated that Dorsey
was not “unequivocal” about whether the Petitioner had a gun on the day of the shooting and
that Dorsey would say one thing while his body language would indicate something different.
Trial counsel said that Dorsey did not witness the shooting and that Dorsey could not testify
as to the Petitioner’s whereabouts at the time of the shooting. He said that the shooting
occurred several hours after Dorsey and the Petitioner were together. He did not call Dorsey
as a witness because he realized that Dorsey “would be shredded on cross-examination.”
Trial counsel opined that Dorsey was “shifty” and would do more harm than good for the
defense. He thought that Dorsey would make a bad impression on the jury. He was certain
that he had discussed the matter with the Petitioner, but he could not recall the exact
conversation. He said he discussed this trial strategy with co-counsel and the investigator.

        Trial counsel testified that he cross-examined Mikeisha Holmes about the television
interview. He thought it was “fairly clear” that the woman was Holmes but her face was
blurred out due to the inference of gang involvement in the shooting. He did not think
Holmes was a good witness because she had pending theft charges and she had provided
three inconsistent accounts about the shooting. When counsel questioned Holmes about the
interview, she denied that she was the person interviewed. Trial counsel stated that he could
not use the video to impeach Holmes “because it wasn’t absolutely clear that it was her[.]”
He said that there was nothing he could do once Holmes denied being interviewed. He did

                                              -4-
attempt to impeach Holmes with her multiple inconsistent statements. Trial counsel stated
that Holmes gave differing statements to the police, in her direct testimony, and at the
preliminary hearing regarding her location when she witnessed the shooting. He said that the
jury heard this cross-examination about the inconsistent statements. Trial counsel even took
the jury to visit the site of the shooting to show the impossibility of the trajectory of where
Holmes claimed the Petitioner had been and where the children were located.2 Counsel
thought the trajectory was impossible because the Petitioner would have been four feet below
the road and the children were several hundred feet away. He said that the path would have
been obstructed by buildings. Trial counsel was “flabbergasted” when he overheard one
juror at the crime scene state, “‘It’s a straight shot.’” He stated that the verdict in the
Petitioner’s case “kept [him] up at night for years.”

        Co-counsel testified that he had been practicing law since 2001. He said that he and
trial counsel shared office space and often assisted one another on high-profile murder cases.
He estimated that he had handled fifty murder cases and said he was capital-certified in
Tennessee. He stated that he and trial counsel had tried eight capital cases together. Co-
counsel recalled that Tristan Dorsey was subpoenaed in the instant case and that Dorsey
would have testified that the Petitioner never made any threats during the day. He opined
that it was a “wise decision” not to call Dorsey because Dorsey had seen the Petitioner with
a gun before. Co-counsel said that it would have been “problematic” if a defense witness
could place a gun in the Petitioner’s hand. He stated that he had discussed this issue with
trial counsel and their investigator and that they did not want to take the risk of having
Dorsey on the stand.

       Co-counsel recalled the testimony of Mikeisha Holmes. He opined that “she was a
scorned liar” and that he “could not imagine how any trier of fact could have found her
credible at all.” He said that Holmes “told three different stories” and that her
inconsistencies were pointed out through cross-examination. Co-counsel stated that Holmes
told yet another story to the news media but that based on the rules of evidence, the defense
could not impeach Holmes once she denied being interviewed. He said that Holmes “was
already impeached four different ways” and that “[b]y her own admission, she had told
different stories.” Co-counsel believed that one more impeachment would not have made
a difference, especially when they could not “substantially prove” that the woman was
Holmes. He thought that the defense presented enough evidence to the jury to create a
reasonable doubt in the State’s case. Based on the verdict, co-counsel felt that “the jury
clearly ignored much of the evidence[.]”



        2
        The trial court had previously determined the vantage points that the jury could view upon
agreement of the parties. The trial court also instructed the jury not to say anything while at the site.

                                                  -5-
       At the conclusion of the hearing, the post-conviction court denied the petition, finding
that the facts establishing guilt were “absolutely overwhelming” and that the Petitioner
received excellent representation. On April 29, 2013, the court entered a written order
denying relief. The Petitioner timely appealed the court’s order.

                                         ANALYSIS

        On appeal, the Petitioner contends that trial counsel was ineffective by failing to call
Tristan Dorsey as a defense witness and by failing to impeach Mikeisha Holmes with her
television interview. In response, the State argues that the post-conviction court properly
denied relief because the Petitioner failed to establish that he received ineffective assistance
of counsel. We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2012). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation marks and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-
110(f)(2012); Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered
clear and convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States

                                              -6-
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the defendant 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).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘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. at 370 (quoting
Strickland, 466 U.S. at 694).

       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, this
“‘deference to matters of strategy and tactical choices applies only if the choices are informed
ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369).

        First, the Petitioner contends that trial counsel was deficient in failing to call Tristan
Dorsey as a defense witness. Regarding this claim, the post-conviction court found that trial
counsel made a tactical decision not to call Dorsey as a witness and that the Petitioner failed
to show how he was prejudiced by this decision. We agree with the post-conviction court that
trial counsel’s failure to call Dorsey was a strategic decision and, therefore, was not deficient

                                               -7-
performance by counsel. Trial counsel testified that he subpoenaed Dorsey for the “sole
purpose” of establishing that the Petitioner did not have a gun on the day of the shooting.
However, after questioning Dorsey, trial counsel and co-counsel determined that Dorsey
would cause more damage than good to the defense. Trial counsel opined that Dorsey
“would be shredded on cross-examination.” Co-counsel said it was a “wise decision” not to
call Dorsey to the stand because his testimony would not be worth the risk to the defense.
At the post-conviction hearing, Dorsey testified that he was not with the Petitioner at the time
of the shooting and that he did not know what the Petitioner was doing in the evening. He
stated that when he told the investigator that he had seen the Petitioner with a gun before,
what he meant was that they were around guns all the time and that the Petitioner has never
had a gun in his hand. Dorsey also acknowledged that he had prior convictions for drug
offenses. This court must be highly deferential to counsel’s performance, Burns, 6 S.W.3d
at 462, and we will not second-guess the informed tactical and strategic decisions of trial
counsel. Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008) (citing Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997)). Upon review, we conclude that the Petitioner has not
established deficiency or prejudice based on trial counsel’s failure to call Dorsey as a
witness. Accordingly, the Petitioner is not entitled to relief on this issue.

       Next, the Petitioner argues that trial counsel was deficient for failing to impeach
Mikeisha Holmes with the television interview. He asserts that trial counsel’s error
prejudiced the defense and prevented the jury from hearing Holmes present a fourth version
of the events.

       In its written order, the post-conviction court specifically held that the Petitioner was
not entitled to relief for trial counsel’s failure to present the videotaped interview to the jury:

               [Trial counsel] and [co-counsel] vigorously cross-examined Ms.
       Holmes during the course of trial. Trial counsel asked Ms. Holmes about the
       television interviews. The face of the person who gave the television
       interview was blurred because of allegations of gang involvement in this case.
       Ergo, trial counsel could not use the alleged interview as the tape could not be
       authenticated. Ms. Holmes was impeached with theft convictions and multiple
       conflicting statements that had been given to the police and at a preliminary
       hearing. [Co-counsel] believed Ms. Holmes to be a “scorned liar” and was
       amazed that anyone would believe her. [Co-counsel] testified that Ms. Holmes
       had been impeached multiple ways.

               ....




                                                -8-
               The Petitioner is clearly mistaken when he asserts that the conviction
       in this case rests solely on the testimony of Ms. Holmes. As summarized on
       direct appeal, the evidence clearly shows that Thomas Jones heard the shooting
       and saw the [Petitioner] flee the location of the shooting. Mr. Jones followed
       the [Petitioner], saw the [Petitioner] in possession of a firearm, and confronted
       the [Petitioner] about having killed a child. The Petitioner said nothing and
       fled before the police arrived.

               The Petitioner has failed to prove that any additional cross examination
       of Ms. Holmes would have made a difference in this trial. Ms. Holmes
       admitted that she had given multiple inconsistent statements regarding this
       shooting. Ms. Holmes testified that she had given inconsistent statements
       because she was afraid of being labeled a “snitch” and that she decided to tell
       the truth after discussing this matter with Jimmy Chambers. Mr. Chambers is
       a gang investigator that Ms. Holmes had known from high school. Ms.
       Holmes testified that she would want truthful testimony if somebody had killed
       her child. The Petitioner is particularly aggrieved because the Petitioner
       believes that the verdict is “illogical” and that he is not guilty. This issue is
       without merit.

        We conclude that the record fully supports the post-conviction court’s determination
that trial counsel’s failure to present the videotaped interview was not prejudicial. At the
post-conviction hearing, both trial counsel and co-counsel testified that they did not consider
Holmes to be a credible witness. They stated that through cross-examination, the jury was
aware of Holmes’s inconsistent statements, her theft convictions, and the fact that she had
dated the Petitioner until she learned that he had another girlfriend. Even though trial
counsel thought that it was “fairly clear” that the woman in the interview was Holmes, he
could not authenticate the video due to the blurred face. When confronted about the news
interview, Holmes denied any involvement. Notwithstanding the efforts of counsel to attack
the credibility of Holmes and to establish a reasonable doubt as to the Petitioner’s guilt, the
jury returned a verdict against the Petitioner. Moreover, we agree with the post-conviction
court that evidence apart from Holmes’s testimony incriminated the Petitioner in the
shooting. Under a sufficiency of the evidence analysis, this court on direct appeal affirmed
the Petitioner’s convictions and concluded:

       The jury, as the trier of fact, was entitled to resolve any inconsistencies in
       Holmes’s accounts of the shooting in favor of the State and to reject the
       testimony of the defense witness who claimed that Holmes was never in a
       position to witness the shooting. We note that Holmes’s eyewitness testimony
       identifying the defendant as the man who fired gunshots at Collier’s vehicle

                                          -9-
       was bolstered by the testimony of Thomas Jones, who related how he first saw
       the defendant running from the area in which he had just heard gunshots and
       then found him, appearing sweaty and armed with a pistol, on the balcony of
       the apartment building where Holmes and others were assembled.

Gilliam, 2011 WL 1744226, at *8. We agree with this reasoning and conclude that the
Petitioner has failed to show that the outcome would have been different if the jury had heard
Holmes present a fourth conflicting account of the shooting. Accordingly, the Petitioner has
not met his burden of proof, and he is not entitled to relief.

                                     CONCLUSION

        Upon review, we cannot conclude that the verdict in the Petitioner’s trial was
undermined or that the proceedings were fundamentally unfair because of the alleged errors
of trial counsel. See Strickland, 466 U.S. at 670 (“[T]he ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose result is being challenged.”). The
Petitioner is not entitled to post-conviction relief, and the judgment of the post-conviction
court is affirmed.


                                                    _______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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