         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE              FILED
                           APRIL SESSION, 1997           January 21, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
DERRICK RICHARDSON,            )     C.C.A. NO. 03C01-9605-CR-00186
                               )
      Appe llant,              )
                               )
                               )     HAMILTON COUNTY
VS.                            )
                               )     HON. DOUGLAS A. MEYER
STATE OF TENNESSEE,            )     JUDGE
                               )
      Appellee.                )     (Post-Conviction)




FOR THE APPELLANT:                   FOR THE APPELLEE:

ARDENA J. GARTH                      JOHN KNOX WALKUP
District Public Defender             Attorney General and Reporter
11th Judicial District
                                     ROB IN L. HA RRIS
DONNA ROBINSON MILLER                Assistant Attorney General
Assistant District Public Defender   450 James Robertson Parkway
Suite 30 0 - 701 C herry St.         Nashville, TN 37243
Chattanooga, TN 37402
                                     BILL COX
                                     District Attorney General

                                     LELA ND D AVIS
                                     Assistant District Attorney General
                                     City and County Courts Building
                                     Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                       OPINION


         Appe llant De rrick R ichard son a ppea ls the tria l court's denia l of his

petition for p ost-con viction relief. H e prese nts the follow ing issue for review:

whether the trial court erred in finding that Appellant's counsel rendered

effective assista nce b oth at tria l and o n app eal.

         After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                             I. FACTUAL BACKGROUND

         On De cembe r 10, 1992, a H amilton Co unty Criminal C ourt jury

convicted Appella nt of first-deg ree mu rder. Th e trial court im posed a life

senten ce. On a ppeal, this court affirm ed App ellant's con viction. See State v.

Derrick Richardson, C.C.A. N o. 03C 01-930 5-CR -00165 , Ham ilton Cou nty

(Tenn . Crim. A pp., Kno xville, June 9 , 1994), perm. to appeal denied (Tenn.

1994).

         On Ju ly 20, 199 5, Appe llant filed a pe tition for post-c onviction re lief,

alleging ineffective assistance of counsel at trial. At the conclusion of the

hearing, the trial court denied Appellant's petition.



                            II. POST-CONVICTION RELIEF

         Appellant contends that the trial court erred in denying his petition for

post-conviction relief based upon the ineffective assistance of counsel both at

trial and on ap peal.

         In post-conviction proceedings, the Appellant bears the burden of

proving th e allegatio ns raised in the petition by clear an d convin cing evide nce.



                                             -2-
Tenn . Code Ann. § 40-30-210 (f)(1997). Moreover, the trial court's findings of

fact are conclusive on appeal unless the evidence preponderates against the

judgm ent. Tidwe ll v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Camp bell v.

State, 904 S.W .2d 594 , 595-96 (Tenn . 1995); Coop er v. State , 849 S.W.2d

744, 746 (T enn. 1993 ).




              A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       Appe llant's o nly con tention is that th e trial co urt erre d in find ing tha t his

trial counsel rendered effective assistance. Specifically, Appellant alleges the

following deficiencies in his trial counsel's representation:

              (1) failure to meet and talk with Appellant for a sufficient
              amo unt of tim e prior to trial;
              (2) failure to c hallenge the sufficien cy of the ev idence both
              at the m otion for ne w trial and o n appe al to this Co urt;
              (3) failure to inform Appellant of the minimum and maximum
              potential s entenc es which Appella nt would face by g oing to trial to
              enable Appellant to intelligently decide whether to accept or reject
              the State's plea offer of twenty years;
              (4) failur e to inte rview c ertain w itness es an d to ca ll
              Appellant's mother and brother as trial witnesses; and
              (5) failure to c onsult with Appella nt before deciding to
              appeal appellant's conviction.

       The Sixth Amendment provides in part, "In all criminal prosecutions, the

accu sed s hall en joy the rig ht. . . to ha ve the a ssista nce o f coun sel for h is

defense." U.S. Const. amend. 6. Similarly, the Tennessee Constitution

guaran tees an accuse d "the right to be hea rd by him self and h is couns el. . . "

Tenn. Const. art. I § 9. In Strickland v. Washington, the United States

Supreme Court articulated a two-prong test for courts to employ in evaluating

claims of ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). The Tennessee Supreme Court adopted Strickland's


                                             -3-
two-part test in Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). The

Strickland Court began its analysis by noting that "The benchmark for judging

any claim of ineffectiveness must be whether counsel's conduct so

undermined the proper functioning of the adversarial process that the trial

canno t be relied o n as ha ving prod uced a just result." Strickland, 104 S.C t.

2052, 2064. When a convicted defendant challenges the effective assistance

of counsel in a post-conviction proceeding, the Appellant carries the burden of

establishing (1) deficient representation of counsel and (2) prejudice resulting

from tha t deficiency . Strickland, 104 S.C t. 2052, 20 64; Powe rs v. State, 942

S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appellant must prove that

couns el's repres entation fe ll below an objective s tandard of reaso nablen ess.

Strickland, 104 S.Ct. 2052, 2064. This Court is not required to consider the

two pron gs of Strickland in any pa rticular orde r. Harris v. S tate, 947 S.W.2d

156, 16 3 (Ten n. Crim. A pp. 199 6). "More over, if the A ppellant fa ils to

establish one pro ng, a revie wing co urt need not cons ider the oth er." Id. With

regard to counsel's deficient performance, the proper measure is that of

reason ablene ss und er prevailing professio nal norm s. Id. (citing Strickland,

104 S.Ct. at 2065). Put differently, counsel's performance is required to be

"within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s."

Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d 156,

163. Re specting the prejud ice prong of Strickland, the Appellant must

estab lish tha t "there is a rea sona ble pro bability th at, but fo r coun sel's

unprofe ssional e rrors, the re sult of the p roceed ing wou ld have b een differe nt.

A rea sona ble pro bability is a prob ability su fficient to unde rmine confid ence in

the outco me." Strickland, 104 S.Ct. 2052, 2068.




                                            -4-
       The Strickland Cour t emp hasiz ed tha t "Judic ial scru tiny of co unse l's

perform ance m ust be hig hly defere ntial." Id. at 2065 . "A `fair asse ssme nt . . .

requires that every effort be made to eliminate the distorting effects of

hindsigh t, to recons truct the circ umsta nces o f counse l's challeng ed con duct,

and to e valuate th e cond uct from couns el's persp ective at the time.'" Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at

2065). The mere failure of a particular tactic or strategy does not per se

establish unreas onable represe ntation. Id. at 369 . How ever, th is Cou rt will

defer to couns el's tactical and strategic ch oices only whe re those cho ices are

informe d ones predicate d upon adequ ate prep aration. Goad, 938 S.W.2d

363, 36 9; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

       With respec t to Appe llant's first allege d deficien cy, Appe llant subm its

that prior to trial, Attorney Charles Wright met with Appellant only three times

for a total of one hour and thirty minutes. However, at the hearing on

Appellant's petition for post-conviction relief, Mr. Wright's records reflected

that he ha d spen t 9.6 hour s discus sing Ap pellant's ca se with A ppellant.

Moreover, M r. Wright furthe r testified that he had de voted a total of 61 ho urs

of time out of court and 36.1 hours of time in court to investigating and

preparing Appellant's case. We, therefore, conclude that Appellant has failed

to carry his b urden o f proving e ither pron g of Strickland. Appellant has failed

to demonstrate that Mr. Wright performed below the range of competence of

attorne ys in crim inal ca ses a nd tha t Appe llant wa s preju diced by his c ouns el's

allegedly deficient performance.

       To bolster his second allegation of deficient representation, Appellant

comp lains that h is attorney w as ineffec tive becau se cou nsel dete rmined not to

contest the sufficiency of the evidence either in the motion for new trial or on

                                           -5-
appeal to this Court. In his brief, however, Appellant does not raise any issues

that wou ld have b uttressed a sufficienc y argum ent on a ppeal. A t the post-

conviction hearing, Mr. Wright explained that he did not contest the sufficiency

of the evidence in the motion for ne w trial or in the appea l to this Court

because he believed such a contention to have no merit and because he

believed that "there w as obvio usly evide nce en ough to sustain a jury verdict."

In his direct appea l, the only issue prese nted was w hether the trial court

improp erly instructe d the jury re garding criminal re spons ibility. State v.

Richardson, CCA No. 03 C01 -9305 -CR- 0016 5, slip o p. at 1. T his Co urt held

that the jury in struction w as prop er. Id. at 4.

       Typically, the decision about which issues to raise on appeal is one that

is left to the pro fessiona l judgme nt and so und disc retion of ap pellate co unsel.

Porte rfield, 897 S.W .2d 672 , 678; Coop er v. State , 849 S.W .2d 744 , 747.

Additionally, Wright appears to have made a well-informed strategic decision

that it would not be in Appellant's best interest to contest the sufficiency of the

evidence. Review of the record evidence in Appellant's case demonstrates

that the evidence was more than sufficient to support the verdict. In light of

the testimony of trial counsel during the post-conviction hearing, we do not

believe that Ap pellan t receive d ineffe ctive as sistan ce be caus e of his attorne y's

decision to refrain from raising a sufficiency of the e vidence argu ment, nor are

we of the opinion that the outcome would have been different had this issue

been p resente d to this Co urt.

       Appellant's brief is wh olly devoid of any argu ment to bu ttress his third

allega tion of in effective assista nce o f coun sel. Ind eed, A ppella nt me rely

asserts, "By failing to advise petitioner of the potential sentences he was

facing so that he might make an intelligent decision about whether to accept or

                                           -6-
reject the p lea offered by the Sta te, W right deficien tly represe nted pe titioner."

The State made a plea offer of twenty years incarceration in exchange for the

State's agree ment to lowe r the charge to s econd-de gree mu rder. Howeve r,

Mr. W right sta ted tha t after dis cuss ing the felony m urder rule an d the S tate's

plea offer w ith Appe llant, Appe llant still insisted u pon pro ceedin g to trial.

Appellant's own admission at the post-conviction hearing indicates he does

not regret rejecting the State's plea offer. No thing in this record indica tes Mr.

Wright's advice was deficient. In addition, since Appellant has indicated he

would still reject the plea offer, he has not demonstrated that he was

prejudiced as a result of this alleged de ficiency.

       With regard to his fourth allegation of inadequate representation,

Appellant asserts that his brother, Tony Richardson, and his mother Ernestine

Richardson should have been called as witnesses. Appellant also complains

that his attorney was ineffective for failing to interview four witnesses named

by a co -defen dant in a state men t given to police by that c o-defe ndan t, Calvin

Johnson.

       Appellant contends that Tony Richardson could have rebutted the

testim ony of L akeys ha Da vis, a cru cial pro secu tion witn ess. A t Appe llant's

trial, Ms. Da vis testified tha t she obs erved from her front p orch the events

surrounding the robbery and subsequent murder of the victim. Tony

Richardson was prepared to testify that, at the time of the murder, he was

standing in the doorway of Lakeysha Davis' apartment and that she was

upstairs in her bedroom rather than on her front porch. However, Richardson

also testified that he could not see the events surrounding the murder because

his view was obstructed by a van which was parked between himself and the

location o f the robb ery and m urder. M r. Wrig ht explaine d that he o pted no t to

                                            -7-
call Ton y Richard son be cause Richard son ha d not ob served th e murd er.

Moreover, Wright claimed that no one had informed him that Tony Richardson

was prepared to refute Lakeysha Davis' statement that she witnessed the

murder from her front porch. Finally, Mr. Wright emphatically stated that had

Tony Richardson been able to clearly observe the robbery and the shooting of

the victim, W right definitely w ould ha ve called R ichardso n as a w itness.

        At the post-conviction hearing, Ms. Richardson stated that had she been

permitted to testify at her son's trial, she would have recounted a conversation

between h erself and Lak eysha Da vis which occu rred approxim ately three days

before the commencement of the trial. According to Ms. Richardson,

Lakeys ha Da vis told her, "M rs. Richa rdson, w ait a minu te, I have so methin g to

tell you. I'm sorry, I d idn't se e noth ing, I do n't kno w noth ing. Ca lvin 1 told me to

get up there and lie like that, said if I didn't, he would have no more use for me

and my baby." At the post-conviction hearing, however, both Mr. Wright and

Mrs. R ichard son te stified th at Mrs . Richa rdson never disclos ed this

informa tion to Mr. W right at any tim e prior to A ppellant's trial.

        With regard to the four witnesses mentioned above, Mr. Wright

explained that he had not interviewed them because they could not be located

and because he "had no leads about finding any of them."                     Under these

circumstances, we find no deficient representation. Again, Appellant has also

failed to show a re asonable p robability that the result of his trial would h ave

been different had these witnesses been called.

        Lastly, Appellant asserts that Mr. Wright rendered ineffective assistance

by neglecting to co nsult Appellan t before filing an appe al with this Court. Mr.



   1
     Calvin Johnson, Appellant's co-defendant, was also Ms. Davis' boyfriend and the father of
her child.

                                                -8-
Wrig ht stated a t the post-c onviction h earing th at Appe llant "never p urported to

add anything to the appea ls process."        The trial court held that although Mr.

Wright should have consulted with Appellant prior to filing an appeal, it was

not necessary that Mr. Wright do so. The fact that Mr. Wright failed to confer

with Appellant before perfecting an appeal to this Court is insufficient to render

his representation deficient. Mr. Wright appealed Appellant's conviction on

what he believed to be the only meritorious claim--the possible impropriety of

the trial court's jury instruction on criminal responsibility. Furthermore,

Appe llant ha s failed to dem onstra te wha t he co uld ha ve add ed to th e app eals

process had he been contacted.

       Becau se we find that App ellant's attorn ey rende red ade quate

representation both at trial and on appeal, we affirm the judgment of the trial

court de nying his p etition for po st-convictio n relief.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
CHRIS CRAFT, SPECIAL JUDGE




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