             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    Assigned on Briefs May 11, 2004

                      ADRIAN S. LENOX v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Davidson County
                             No. 99-C-1752     Steve R. Dozier, Judge



                          No. M2003-00482-CCA-R3-PC - Filed May 20, 2004


The petitioner appeals the post-conviction court’s denial of his petition for post-conviction relief,
in which he alleged ineffective assistance of counsel. We conclude that the petitioner has failed to
establish that he received ineffective assistance of counsel. We affirm the denial of post-conviction
relief

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

Dwight Scott, Nashville, Tennessee, for the appellant, Adrian S. Lenox.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                      OPINION

        The petitioner, Adrian S. Lenox, was convicted of aggravated burglary, vandalism, felony
evading arrest, and driving on a revoked license. He was given an effective sentence of fourteen
years. This Court affirmed the defendant’s convictions and sentences on direct appeal. State v.
Adrian S. Lennox, No. M2000-02869-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 742 (Tenn.
Crim. App., at Nashville, Sept. 14, 2001).1 The petitioner subsequently filed a petition for post-
conviction relief, and it was denied. He timely filed his notice of appeal. The petitioner contends
on appeal that he received ineffective assistance of counsel at trial. We affirm the post-conviction
court’s denial of relief.



         1
           The correct spelling of the petitioner’s last name appears to be Lenox according to the indictments, judgments,
and his signature on the petition for post-conviction relief.
I. Trial Proceedings

       The following factual background is taken from the defendant’s direct appeal:

                On March, 20, 1999, Patricia Cantrell was sunbathing in her backyard when
       she heard a car pull into her neighbor’s driveway. Through a bush between the two
       houses, Ms. Cantrell saw the feet of a man approach the back door and knock. A few
       seconds later, Ms. Cantrell heard the sound of breaking glass, and ran to her house
       to call the police. While talking to the 911 operator, Ms. Cantrell saw the back of a
       man exit the house with a television set and drive away. Ms. Cantrell was able to
       describe the car to the 911 operator as the car was leaving. She described it as an
       older model sedan with a wheel cover on the back. After the Defendant was arrested,
       Ms. Cantrell identified the Defendant’s car as the car she had seen at her neighbor’s
       house.

               Only a mile away, Officer Michael Adkins of the Metro-Davidson Police
       Department was notified about the burglary. As Officer Adkins approached a
       stoplight, he noticed a car with a television in the back seat matching the description
       of the car seen by Ms. Cantrell. When Officer Adkins attempted to pull the car over,
       the car crossed into oncoming traffic and turned down a side street. With Officer
       Adkins in pursuit, the car turned into a driveway of a private residence, drove through
       a carport and into the backyard of the residence. The car then crossed into the
       backyard of Walter Edwards who was working in his garden at the time. The car
       came within forty feet of Mr. Edwards and then struck a dogwood tree, pulling the
       tree up by the roots. The Defendant then exited the car, and, after a short foot chase,
       was apprehended. The Defendant’s hand was bleeding and he told Officer Adkins
       that he knew he was caught because his blood was at the scene of the burglary.
       Police found a television, a VCR, a camera, a crowbar, and a pair of pliers in the
       Defendant’s car.

               Carl Dupree, the victim, was notified by police that his home had been
       burglarized. Upon returning home, Mr. Dupree discovered that his back door had
       been kicked in, the glass was broken, and his television was missing. Mr. Dupree also
       discovered blood stains on the door and inside the house. Mr. Dupree was later taken
       to Mr. Edward’s backyard, where the Defendant had been apprehended, and
       identified the television in the Defendant’s back seat as his own. The repair of Mr.
       Dupree’s door cost about $1,000.

Adrian S. Lennox, 2001 Tenn. Crim. App. LEXIS 742, at **2-4.




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II. Post-Conviction Hearing

        The petitioner’s trial counsel testified at the post-conviction hearing that he did not interview
any witnesses in this case before the day of trial. The petitioner denied committing the crime and
informed counsel that he had traded crack cocaine for the television that was recovered from his
vehicle. According to counsel, the petitioner never provided him with the names of any witnesses
other than the “street name” of the person that the petitioner claimed to have traded him the
television for crack cocaine. After learning of the trade, counsel decided that it would not be in the
petitioner’s best interest to pursue this line of defense. Instead, the defense centered around the
question of identification. There were some discrepancies in the eyewitness’s description of the
perpetrator, and counsel recalled addressing this issue on cross-examination. Counsel testified that
he did not recall anyone named Larry Tate and was never given his address. Additionally, counsel
did not recall any specific jurors but did remember that there were challenges to some of the
members of the jury venire.

         The petitioner testified that he told counsel to contact his mother, sister, and girlfriend to
verify that he had possession of the television before the time of the incident. He testified that they
had seen him in possession of the television before he was arrested. According to the petitioner, he
had purchased the television from Larry Tate for $32.00 on the day he was arrested. He denied
telling counsel that he had traded crack cocaine for the television. Specifically, he stated that he told
counsel to contact Larry Tate in Edmonson Manor Apartments because he could verify that he sold
the television to the petitioner. The petitioner also said that he told counsel to contact Martha
Springer (the petitioner’s mother), Shana Lenox (the petitioner’s sister), and Tracy Duke (the
petitioner’s girlfriend). The petitioner also testified that he told counsel where to locate his sister
and mother and gave him Tracy Duke’s address. He further testified that Officer Adkins “made up”
his testimony concerning statements made by the defendant while being arrested.

        The petitioner’s mother and sister also testified at the hearing. His mother stated that she saw
a television in the back of the petitioner’s vehicle “shortly” before he was arrested. However, she
could not recall any specifics. The petitioner’s sister testified that she had seen a television in the
back of the petitioner’s vehicle about a week before this incident. However, she could not provide
any specific description of the television (such as size, color, etc.). No other witnesses were
presented.

        The post-conviction court accredited the testimony of counsel and found that the petitioner
never advised counsel of the witnesses or the nature of their testimony. The court concluded that
the petitioner had failed to meet his burden of showing that counsel was deficient or that he had
suffered prejudice as a result of the alleged deficiency. Accordingly, the court denied post-
conviction relief.




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III. Analysis

        The petitioner now appeals the denial of post-conviction relief and contends that he received
ineffective assistance of counsel at trial. This Court reviews a claim of ineffective assistance of
counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden
to prove that (1) the attorney’s performance was deficient and (2) the deficient performance resulted
in prejudice to the defendant so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990). The failure to prove either deficiency or prejudice justifies denial of relief; therefore,
the court need not address the components in any particular order or even address both if one is
insufficient. Goad, 938 S.W.2d at 370. In order to establish prejudice, the petitioner must establish
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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “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, 104 S. Ct. at 2065).

         In reviewing counsel’s conduct, a “fair assessment . . . 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.” Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        The petitioner bears the burden of proving the factual allegations that would entitle the
petitioner to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). We review
the post-conviction court’s factual findings underlying a claim of ineffective assistance of counsel
under a de novo standard with a presumption that those findings are correct – unless the
preponderance of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However, the post-
conviction court’s conclusions of law – such as whether counsel’s performance was deficient or
whether that deficiency was prejudicial – are reviewed under a de novo standard with no presumption
of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted).



                                                  -4-
        First, the petitioner alleges ineffective assistance because of counsel’s failure to interview
and subpoena several witnesses including Martha Springer, Shana Lenox, Tracy Duke, and Larry
Tate. When a petitioner alleges that counsel failed to discover, interview, or present witnesses in
support of his defense, he is not entitled to relief “unless he can produce a material witness who (a)
could have been found by a reasonable investigation and (b) would have testified favorably in
support of his defense if called.” Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990).
In general, the only way to establish the prejudicial value of a witness’s testimony is to present that
witness at the post-conviction hearing. Id. at 757. “It is elementary that neither a trial judge nor an
appellate court can speculate or guess on the question of . . . what a witness’s testimony might have
been if introduced by defense counsel.” Id. Tracy Duke and Larry Tate did not testify at the post-
conviction hearing; therefore, the petitioner has obviously failed to establish any prejudice relating
to these two witnesses.

         In regard to the other two witnesses, neither could give a description of the television that
they claimed to have seen in the petitioner’s vehicle prior to his arrest. Additionally, Shana Lenox’s
testimony was that she observed the television in the petitioner’s vehicle about a week before this
incident. According to the petitioner, he purchased the television on the day that he was arrested.
It is unlikely that this testimony would have assisted in the petitioner’s defense. In any event, the
evidence does not preponderate against the post-conviction court’s finding that the petitioner failed
to advise counsel of the witnesses or the nature of their testimony. This issue is without merit.

         Next, the petitioner contends that he received ineffective assistance because of counsel’s
failure to challenge two of the jurors selected. Specifically, the petitioner claims that counsel should
have peremptively challenged two “obviously biased” jurors. During voir dire, juror Washington
stated that she had been the victim of a burglary. When initially asked about her ability to be
impartial despite being the victim of a crime, she responded “I don’t know.” However, after further
questioning she stated that she could be fair and impartial despite being the victim of a burglary.
Juror Collins said that he had a close relationship with the assistant district attorney prosecuting the
case. When asked if his relationship with the prosecutor would prevent him from being fair and
impartial, he responded “I don’t think so.” We conclude that these statements by the two jurors are
insufficient to establish that the petitioner was prejudiced by the jurors’ inclusion on the jury panel.
Jurors Washington and Collins did not testify at the post-conviction hearing; therefore, we take their
statements during voir dire that they could be fair and impartial at face value. This issue is without
merit.

       We conclude that the petitioner has failed to establish that he received ineffective assistance
of counsel. Based on the foregoing reasoning and the record as a whole, we affirm the denial of
post-conviction relief.



                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE


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