         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 27, 2004

                  DERRICK BRYANT v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Hamblen County
                          No. 03CR063     James E. Beckner, Judge



                   No. E2003-02911-CCA-R3-PC - Filed September 8, 2004


The Defendant, Derrick Bryant, was convicted by a jury of first degree premeditated murder. His
conviction was affirmed on direct appeal. See State v. Derrick Bryant, No. E2000-01835-CCA-
MR3-CD, 2001 WL 1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001). In this post-conviction
proceeding, the Defendant alleges that he received ineffective assistance of counsel. After a hearing,
the trial court denied relief. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Mitzi Sweet, Morristown, Tennessee, for the appellant, James E. Beckner.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; and Victor Vaughn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION


        The Defendant shot his sleeping father in the back of the head, killing him. The Defendant
was sixteen years old at the time. After a transfer hearing in juvenile court, the Defendant was tried
as an adult, convicted of first degree premeditated murder, and sentenced to life imprisonment. The
Defendant now contends that his lawyers were ineffective in failing to obtain a forensic evaluation
for the purpose of the transfer hearing, and for the purpose of the subsequent trial.

        Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

        At the time of his transfer hearing in April 1998, the Defendant was subject to being
transferred from juvenile court to circuit court to be tried as an adult if, among other things, the
juvenile court determined that there were reasonable grounds to believe that: (a) he committed the
delinquent act as alleged; (b) he was not committable to an institution for the mentally retarded or
mentally ill; and (c) the interests of the community required that he be put under legal restraint or
discipline. See Tenn. Code Ann. § 37-1-134(a)(4) (Supp. 1998). In making this determination, the
juvenile court was to consider, among other things, (a) the extent and nature of the Defendant’s prior
delinquency records; (b) the nature of past treatment efforts and the nature of his response thereto;
(c) whether the offense was against a person or against property, with greater weight in favor of
transfer given to offenses against a person; (d) whether the offense was committed in an aggressive


                                                  -2-
and premeditated manner; and (e) the possible rehabilitation of the Defendant by use of procedures,
services and facilities currently available to the court in this state. See id. § 37-1-134(b). The
Defendant now asserts that his lawyers failed to investigate adequately his mental health history and
further failed to obtain and put on sufficient expert proof and testimony to cause the juvenile court
to retain jurisdiction and deny the State’s motion to transfer the Defendant to circuit court.

          The Defendant offered no expert proof at the post-conviction hearing that establishes that
he was committable to an institution for the mentally retarded or mentally ill; that the nature of past
treatment efforts and his response thereto weighed in favor of retention; or that his potential for
rehabilitation was such that retention should have been ordered. In other words, the Defendant has
offered no proof in this proceeding that, through additional diligence, his lawyers could have
convinced the juvenile court to retain jurisdiction and deny the State’s motion to transfer the
Defendant to be tried as an adult. Accordingly, the Defendant has failed to prove prejudice in this
regard and his claim of ineffective assistance of counsel on this ground was therefore properly denied
by the trial court. This issue is without merit.

        The Defendant also contends that his lawyers were ineffective in failing to obtain a forensic
evaluation for purposes of his trial, thereby undercutting his defense theories of “battered child
syndrome,” self-defense, and “diminished capacity.”1 Again, the Defendant’s contention fails for
lack of proof. The Defendant presented the post-conviction trial court with absolutely no expert
testimony to establish that a forensic evaluation would have benefitted him at trial. To the contrary,
the Defendant’s trial lawyer testified that he spoke with several mental health professionals, none
of whom offered helpful advice. The one evaluation performed upon the Defendant at defense
counsel’s insistence was conducted by Dr. Leonard M. Miller prior to the transfer hearing in order
to determine whether the Defendant was competent to stand trial and whether he could assist in his
own defense. The Defendant’s lawyer testified that Dr. Miller’s evaluation was not helpful to the
defense. The Defendant has put on no expert proof to the contrary. Accordingly, the trial court did
not err in refusing to grant the Defendant relief on this basis.

        In short, the Defendant has simply failed to prove his allegations that he was prejudiced by
his lawyers’ representation of him. In a post-conviction proceeding, “[t]he petitioner shall have the
burden of proving the allegations of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-
30-110(f). The Defendant having failed to carry his burden of proof, we affirm the judgment of the
trial court.


                                                                 ___________________________________
                                                                 DAVID H. WELLES, JUDGE


         1
           The term “diminished capacity” does not actually refer to a defense, but is rather a claim advanced by a
criminal defendant through expert testimony that he or she did not posses the requisite culpable mental state to be guilty
of the crime charged. See State v. Hall, 958 S.W .2d 679, 688-89 (Tenn. 1997); State v. Phipps, 883 S.W .2d 138, 143
(Tenn. Crim. App. 1994).

                                                           -3-
