Chico McCracken was convicted of murder during the commission of a felony and aggravated robbery. He sought post-conviction relief, claiming ineffective assistance of counsel, but the court dismissed his petition, a decision that was upheld on appeal. The case, originally heard in 2003, involved an incident at the Ebony and Lace Nightclub in Memphis on December 1, 1999. During a dice game, an argument escalated between McCracken and Hubert Benson, the victim. McCracken, after sending his half-brother William Wilson to fetch a car, brandished a gun and demanded money from Benson. Despite Benson's initial refusal, McCracken shot into the air and coerced him into surrendering cash, ultimately collecting between $1,300 and $1,500. After the robbery, McCracken and Wilson fled in a blue Mazda, while Benson sought help from nightclub security, which was denied, prompting him to pursue the robbers. The appellate opinion was delivered by Judge Robert W. Wedemeyer, with Judges Jerry L. Smith and James Curwood Witt, Jr. concurring.
Mr. Benson followed a blue Mazda, driven by Mr. Wilson and accompanied by the Defendant, after assuming they were heading toward the interstate. He called 911 to report their location. Upon noticing Mr. Benson's vehicle behind them, Mr. Wilson turned off the Mazda's headlights and accelerated to approximately ninety miles per hour, disregarding traffic signals. Officer John Robinson monitored the chase via radio and joined the pursuit, maneuvering his patrol car between the Mazda and Mr. Benson, followed by Officer Robert Wilkie. By the time Wilkie joined, Mr. Wilson was driving at fifty-five to sixty miles per hour with headlights off, all vehicles maintaining a close distance.
Officers David Royal and John Chevalier, who had just finished their shifts, responded to Officer Robinson's request for assistance, with Chevalier driving. As the chase continued, Officer Robinson attempted to pass the Mazda but was struck on the left rear by Mr. Wilson, who intentionally swerved into Robinson's path. This caused Robinson's patrol car to lose control, skid, and slide down an embankment. Meanwhile, the Mazda collided with a guardrail and came to a stop in the road. Both Mr. Wilson and the Defendant were arrested without resistance, though no weapon was found in the Mazda. Money was discovered inside the vehicle.
Officer Chevalier aided Officer Robinson, who was still alive but in critical condition, and he was airlifted to the hospital, where he died later that day from his injuries. Angela Williams, the Mazda's owner, testified that she had asked the Defendant to drive her to work and later retrieve the car from the garage, which was experiencing mechanical issues. Although she needed the car that evening, she left it at the garage and requested the Defendant to bring her milk, but he never arrived at her apartment.
Wardell Askew, an employee of Ebony and Lace, witnessed an argument between the Defendant and Mr. Benson, which began after Mr. Benson's dice hit a bystander. Askew left the game before the Defendant drew a gun and was about fifty feet away when he heard two gunshots. He attempted to fetch Mr. Wilson, but Wilson had already been brought outside by others. Although Askew observed Mr. Wilson picking up money, he did not see a gun or know who fired the shots. Upon the Defendant's arrest, no weapon was found on him or Mr. Wilson, but $1,700 was recovered from the Mazda. The Defendant had dice in his pocket. Officer Dana Stine, later retrieving evidence from the scene, found three .380 caliber cartridges and two AK-47 cartridges at the nightclub. An accident reconstructionist, Robin Beach, examined the collision between the Mazda and Officer Robinson’s car and identified a circular rubber transfer on the police vehicle, indicating that the Mazda had its tire turned upon impact. He noted that both vehicles were in good condition and traveling at approximately forty-nine miles per hour. The limited rubber transfer suggested only brief contact before the police car lost control. Beach also observed that the Mazda's headlights were off during the collision.
In a post-conviction relief petition, the Petitioner, Chico McCracken, claimed ineffective assistance of counsel. He testified that he only met with his original trial counsel twice and did not have adequate opportunity to discuss his case or provide additional information until the day of trial. He expressed a desire for an investigator due to potential witnesses, but counsel informed him that securing an investigator was not feasible. Witnesses he identified included Tomeka Wallace, Sleeve, Big Junior, and Mook. A hearing on this claim was held in July 2005.
Big Junior attended the Petitioner’s trial but could not testify due to not being subpoenaed. The Petitioner informed Counsel of potential witnesses on the trial day, asserting they could support his claims that one victim, Herbert Benson, was not robbed, that he did not possess a gun, and that he had money with him. He sought to have the first officer on the scene testify, as this officer had taken $4,700 from him, which he claimed would demonstrate he did not rob Benson, who had $1,700 taken. The Petitioner criticized the introduction of five shell casings as evidence and argued that Counsel failed to question witnesses about the shells, a ballistics test, or the absence of a gun. He also expressed concern about pretrial publicity and the lack of a motion for a change of venue, as well as the absence of traffic investigators or reconstructionists. During cross-examination, he noted limited discussions with Counsel regarding his case and provided names of potential witnesses on the trial day, though he could not provide full information on them. The Petitioner had previously given Counsel a contact for potential witnesses, but communication attempts through Wardell Askew were unsuccessful. Counsel, who met with the Petitioner multiple times, claimed she could not locate the witnesses due to insufficient details provided by the Petitioner and stated she believed the shell casings could aid his defense, as no gun was found and the evidence did not align with the robbery claim.
Counsel determined that there was no potential for fingerprint analysis and felt confident that the Petitioner could receive a fair trial, negating the need for a motion to change venue. Counsel did not engage an accident reconstructionist, believing the core issue was whether a robbery occurred, rather than the specifics of the accident. She was not informed that the arresting officer had taken the Petitioner’s money and decided against calling an accident reconstructionist as it was deemed irrelevant; the officer’s death further diminished the necessity of such testimony. Counsel also weighed the risks of having the Petitioner testify, considering his prior robbery convictions that could be used against him. During jury selection, she felt jurors could differentiate between the current and a similar case, thus justifying her decision against a venue change.
Counsel and her investigator attempted to locate witnesses but were unsuccessful due to insufficient information. Counsel refrained from questioning officers who did not present damaging testimony, believing this was a strategic choice. The post-conviction court ruled that Counsel adequately handled the case, finding no grounds for a venue change and emphasizing that an accident reconstructionist would not have benefitted the defense given the strategy of denying the robbery. The court noted the Petitioner failed to demonstrate prejudice from the absence of such a witness or establish a valid motion regarding the exclusion of shell casings. The Petitioner’s claim of limited meetings with Counsel was discredited, and he did not produce witnesses to support his claims. Consequently, the court concluded that Counsel provided adequate representation, resulting in the denial of the post-conviction relief petition.
On appeal, the Petitioner argued that the trial court erred in dismissing his petition based on ineffective assistance of counsel, citing failures to present witnesses, cross-examine, suppress evidence, and change venue. To succeed in post-conviction relief, the Petitioner must demonstrate a violation of constitutional rights, carrying the burden of proof by clear and convincing evidence. The appellate court will not re-evaluate evidence, as credibility and factual determinations are reserved for the trial judge.
A post-conviction court's factual findings are reviewed de novo, with a presumption of correctness that can only be rebutted by a preponderance of the evidence against those findings. Conversely, conclusions of law are subject to a purely de novo review without any presumption of correctness. The right to legal representation for the accused is guaranteed by the Sixth Amendment and the Tennessee Constitution.
To establish ineffective assistance of counsel, a petitioner must satisfy a two-prong test: first, demonstrate that counsel's performance was deficient, indicating that errors were so significant that the attorney was not fulfilling their Sixth Amendment role; second, show that this deficient performance prejudiced the defense, meaning it deprived the petitioner of a fair trial with reliable results. If both elements are not proven, it cannot be claimed that the conviction or sentence resulted from a breakdown of the adversarial process.
The standard for evaluating counsel's effectiveness is based on whether their representation fell below an objective standard of reasonableness, taking into account the totality of the circumstances and the context of the case. Courts must review the attorney's performance with a strong presumption of reasonableness, acknowledging that the petitioner is entitled only to constitutionally adequate, not perfect, representation. A mere failure of a strategy or tactic does not itself prove ineffective assistance; the focus is on whether the conduct was constitutionally compelled rather than merely what might have been prudent or appropriate.
Deference to counsel's strategic choices is warranted only when those choices are informed by adequate preparation. If a petitioner demonstrates that their counsel's performance fell below a reasonable standard, they must also show prejudice under the Strickland test, specifically that there is a reasonable probability the outcome would have differed but for counsel's errors. This includes establishing that the fact-finder would have had reasonable doubt about the petitioner's guilt, with the probability being sufficient to undermine confidence in the outcome.
The petitioner outlined several instances of alleged deficient performance by counsel. First, it was claimed that counsel failed to present a defense by not calling witnesses or cross-examining officers. Counsel testified about efforts to locate potential witnesses but faced challenges due to a lack of identifying information. Additionally, counsel was unaware of other witnesses who could have testified. The defense strategy focused on discrediting the robbery theory, making cross-examination of officers unnecessary since they had not provided damaging testimony.
Second, the petitioner argued that counsel was deficient for not filing a motion to suppress shell casings admitted into evidence. However, the defense maintained that the shell casings supported their theory of the case, as the types of casings found were inconsistent with the testimony about the petitioner’s weapon. The post-conviction court found no basis to suggest the casings should not have been admitted, leading to a conclusion that the petitioner could not prove prejudice from counsel's decisions.
Counsel's strategic decision not to object to the shell casings was deemed reasonable. The Petitioner argued that Counsel was deficient for not requesting a change of venue due to the publicity surrounding a similar case, the Overton Case. However, Counsel conducted a thorough assessment of the jury pool's exposure to this publicity, including administering a questionnaire before voir dire and attempting to have jurors questioned individually, although this motion was denied. Counsel believed there was no basis for a change of venue as the jury appeared unaware of the surrounding media attention. The post-conviction court supported this view, indicating that jurors in Shelby County are often uninformed about such cases. Consequently, the court found that the Petitioner did not demonstrate Counsel's deficiency or any resulting prejudice, thus denying post-conviction relief on this matter. The judgment of the post-conviction court is affirmed.
