        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                        JUNE SESSION, 1998                 FILED
                                                    September 11, 1998
TYRONE G. MEADE,           )   C.C.A. NO. 02C01-9708-CR-00316
                           )                         Cecil Crowson, Jr.
      Appe llant,          )                               Appellate C ourt Clerk

                           )
                           )   SHELBY COUNTY
VS.                        )
                           )   HON. JAMES C. BEASLEY, JR.
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

RANDALL B. TOLLEY              JOHN KNOX WALKUP
242 Poplar Avenue              Attorney General and Reporter
Memphis, TN 38103
                               DOUGLAS D. HIMES
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               WILLIAM GIBBONS
                               District Attorney General

                               JOHN CAMPB ELL
                               Assistant District Attorney General
                               Criminal Justice Complex, Suite 301
                               201 Poplar Street
                               Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Defendant ap peals the trial court’s de nial of his pe tition for post-

conviction relief. He was convicted by a jury verdict of two counts of second

degree murder.       He sought post-conviction relief asserting that he received

ineffective assistan ce of counsel at trial. Following an evidentiary hearing, the

trial court denied relief and we affirm.



       The Defendant was co nvicted of tw o coun ts of second degree murder for

shooting and killing Charles Matthews and Lavester Jefferson in Memphis,

Tennessee. He originally received an effective sentence of forty years. He

appealed his convictions and his sentence and this court affirmed his convictions

but rem anded for resen tencing. State v. Meade, 942 S.W.2d 561 (Tenn. Crim.

App. 1996).     The record indicates that upon resentencing he received two

concu rrent twen ty-year sen tences .



       With the assis tance of c ounse l, the Defe ndant filed a petition for post-

conviction relief on March 18, 1997. The petition alleged that trial counsel was

ineffective for failing to zea lously re prese nt the D efend ant, failin g to file pretrial

motions, failing to objec t to testim ony, failin g to investigate, failing to cross-

examine witnesses, failing to properly advise the Defendant concerning his right

to testify, failing to request a mental evaluation, failing to raise the issue of

dimin ished capa city and failing to adeq uately p repar e for trial.




                                            -2-
        First, we will briefly discuss the underlying facts. The Defendant gave the

police a statement, which was introduced at his trial, in which he admitted that he

had shot and killed bo th victims. He said tha t the victims were “crazy” and “high”

on both a lcoho l and d rugs. T he m en we re insu lting bo th him and h is girlfriend

and he felt threatened by the way they were talking. He told them to leave but

they would not, so he shot the first victim. He subsequently got into an argument

with the second victim and shot him also. The autop sy report indicated that both

victims died of multiple gunshot wounds with at least one wound to the back of

each victim’s head at close range. Both victims tested positive for cocaine and

alcoh ol. 1   At the post-convictio n hea ring, the Defe ndan t testified and a gain

admitted that he had k illed bo th victim s. He s aid that he killed one of the victims

in self defense because he was “threatened or provoked” and that the victim had

a gun. H e said that the other v ictim a lso thre atene d him , but he didn’t know if

that victim had a gun or not. He further stated that he had “over-reacted” when

he shot the s econd victim and that his ove rreaction may have been due to the

fact that he had consumed alcohol that evening.



        In this appeal, the Defendant argues that his trial cou nsel was ineffec tive

because (1) he filed no pre trial mo tions to test the streng th of the State’s case,

(2) he failed to file a motion to suppress the statements Defendant had give n to

police, (3) he filed no motions for discove ry, (4) he filed n o motio n in limine to

inquire as to whether a prior manslaughter conviction could be used against the

Defendant if he testified, (5) he performed an inadequate investigation of the

facts, (6) he fa iled to in vestiga te or rais e the is sue o f dimin ished capacity or



1
 For a detailed summary of the facts developed at trial, see State v. Meade, 942 S.W.2d
561, 563-564 (Tenn. Crim. App. 1996).

                                           -3-
request a pretrial mental eva luation, (7) he ma de unpro fessional e rrors in

judgment, (8) he gave improp er advice conce rning the decision not to offer any

defense proof, including proof of self defense, (9) he misrepresented to the

Defendant that he would prevail at trial, and (10) he exhibited an overall lack of

effort an d zea l.



       Trial couns el testified at g reat leng th concerning the various allegations of

ineffective assistance of counsel. He testified that he filed no pretrial motions

because he though t none were necessary in view of his theory of self defense.

He said he saw no grounds on which to file a m otion to supp ress th e Def enda nt’s

statem ent. He stated that he filed no discovery motions because the district

attorne y’s office gave him free and o pen a cces s to the ir entire file . Trial co unse l’s

testimony was un clear con cerning his failure to file a motion to test the

admissibility of the De fenda nt’s prior manslaughter conviction as contemplated

by Rule 609(a)(3) of the Tennessee Rules of Evidence. It is clear, however, that

at trial the judge ruled that the Defe ndan t’s testim ony co uld not be impeached by

reference to this prior conviction and that the Defendant nevertheless decided not

to testify.



       Trial counsel testified that he adeq uately investig ated th is case and th at his

investigator contacted eleven of the eighteen witnesses whose names were given

him by the Defendant.         He obtained statements from these witnesses and

statem ents from other witnesses who testified for the State. Trial counsel further

testified that he saw no indications that the Defendant suffered from any mental

defects or that “diminished capacity” was a legitimate issue in this case. Counsel

testified that in his view, the only defense to the second degree murder charges

                                            -4-
was self defense or provocation, and he believed he raised these issues fully by

cross examination of witnesses and through the statements which the Defendant

had made to the police.      Trial counsel further testified that he advised the

Defendant fully concerning the decision whether to testify at trial. He stated that

the Defenda nt decided he did not desire to testify. Trial counsel generally denied

the remaining factual allegations presented in the post-conviction petition as

alleged by the Defendant during his testimony at the post-conviction proceeding.



       Other than the De fendant and his trial counsel, the primary additional

witness at the post-conviction hearing was a clinical psychologist who testified

gene rally that the Defendant’s history of alcohol abu se could po ssibly have

affected his mental capacity and decision-making process at the time of the

killings.



       Subsequent to the e videntia ry hea ring, the post-c onvictio n court filed a

written order denying post-conviction relief.      The court found that many of

coun sel’s decisions and the actions complained of by the Defendant fell clear ly

in the category of trial strategy and trial tactics, and the court found no

shortcomings in counsel’s actions. Concerning the lack of pretrial motions and

discovery, the post-conviction court accredited counsel’s decision not to pursue

said motions in view of the open acce ss cou nsel w as give n to the State’s file and

his judgmen t that further motions were unnecessary. The court further found that

trial counsel had thoroughly investigated the case prior to proceeding to trial. The

post-conviction court concluded that defense c ounsel had provided effective

representation to the Defendant and had represented the Defendant to the best

of his ability.   The court further concluded that defense counsel had the

                                         -5-
experience and ab ility to evaluate and properly prepare a criminal case for trial

and h ad do ne so in the case at bar. The court accordingly determined that the

Defendant had not established his c laim of ineffective assistance of counsel and

therefore was no t entitled to po st-convictio n relief.



       In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 93 6 (Ten n. 1975). To succeed on a claim that his counsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed by the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produ ce a reliab le result. Strickland v. Washington, 466

U.S. 668, 687 (19 84); Cooper v. State, 849 S.W .2d 744 , 747 (T enn. 19 93); Butler

v. State, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the second prong, the

petitioner must sh ow a rea sonab le proba bility that, but for counsel’s

unrea sona ble error, the fact finder would have had reasonable doubt regarding

petition er’s guilt. Strickland, 466 U .S. at 69 5. This reasonable probability must

be “sufficient to undermine confidence in the outc ome.” Harris v. S tate, 875

S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial counsel’s ac tions, th is cour t shou ld not u se the bene fit

of hindsight to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.

                                           -6-
      In post-conviction relief proceedings, the petitioner has the burden of

proving the allegations of fact in his or her petition by clear and convincing

evidence. Tenn. Code Ann. § 40-30-210(f). The factual findings of the trial court

are conclusive on appeal unless the appellate court finds that the evidence

preponderates against the judgm ent. Butler, 789 S.W.2d at 899. In the case at

bar, the trial court found that defense counsel had adequately investigated the

case against the Defendant and had d iligently p repar ed for tr ial and zealo usly

represented this Defendant. The post-conviction court further determined that

other actions of trial counsel properly fell within the category of trial strategy and

tactics. The Judge further concluded that the De fenda nt had not es tablish ed his

claim of ineffective assistance of counsel. We believe the record supports the

findings and conclusions of the post-conviction ju dge. F rom o ur revie w of this

record, even if we determined that trial counsel was ineffective in some way, we

do not believe that the Defendant has established prejudice.            He has not

demonstrated a reasona ble probability, sufficient to unde rmine our co nfiden ce in

the outcome, that but for counse l’s error, the jury w ould h ave ha d a rea sona ble

doubt re garding the Defe ndant’s g uilt.



      According ly, the judgment of the trial court denying post-conviction relief

is affirmed.



                                  ___________________________________
                                  DAVID H. WELLES, JUDGE




                                            -7-
CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                              -8-
