         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    October 29, 2002 Session

              ALLEN DALE CUTSHAW v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Greene County
                           No. 01CR074     James E. Beckner, Judge



                                   No. E2002-00438-CCA-R3-PC
                                         January 22, 2003

The petitioner, Allen Dale Cutshaw, appeals the trial court's denial of his petition for post-conviction
relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel.
The judgment of the trial court is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT W.
WEDEMEYER, JJ., joined.

J. Russell Pryor, Greeneville, Tennessee, for the appellant, Allen Dale Cutshaw.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and
Cecil Mills, Assistant District Attorney General, for the appellee, the State of Tennessee.

                                               OPINION

          The petitioner was convicted of second degree murder for the shooting death of the victim,
J.R. Metcalf, and sentenced to twenty-five years' incarceration. Both the conviction and
accompanying sentence were affirmed on direct appeal. See State v. Allen Dale Cutshaw, No.
03C01-9711-CC-00521 (Tenn. Crim. App., at Knoxville, Nov. 23, 1999). Later, the petitioner filed
this petition for post-conviction relief, alleging that he was denied the effective assistance of counsel
at trial. He specifically complained that his trial counsel was ineffective for failing to present certain
favorable defense witnesses and for denying him the right to testify.

        The petitioner, originally charged with first degree murder, was convicted of second degree
murder for the December 14, 1996, shooting death of the victim. During the late evening hours of
December 13, the petitioner and the victim were involved in a fight at the Starlite Club in Greene
County. After bouncers at the club broke up the fight, the petitioner was asked to leave. As he left,
the petitioner told people inside the bar that he wanted the victim to meet him at a certain location
to continue the fight. Later, the petitioner returned to the bar looking for the victim.
        Angela Dawn Smelcer testified that she left the Starlite Club with the victim and that they
drove around looking for the petitioner. She stated that Ed Thomas, a friend of the victim, assisted
them in their search. Eventually, while traveling on Arlie Waddell Road, they encountered the
petitioner, who was driving toward his residence. According to Ms. Smelcer, the victim directed her
to stop the car, stepped outside the vehicle, and began walking toward the petitioner, who had also
stopped his truck. She testified that the victim lifted his shirt to show the petitioner that he was
unarmed and shouted for the petitioner to "fight like a man." Ms. Smelcer, who recalled someone
shouting that the petitioner had a gun, saw the weapon as the petitioner held it down to his side. Ms.
Smelcer testified that the victim dove toward the petitioner's feet, in an apparent effort to knock him
down, and was killed when the gun discharged. Other witnesses confirmed that account.

        At the evidentiary hearing, trial counsel testified that he was certified as a criminal trial
specialist by the Tennessee Commission on Continuing Legal Education and by the National Board
of Trial Advocacy. At the time of trial, he had been practicing law for over twenty years. Trial
counsel stated that he had spent "at least" two hundred fifty hours preparing for the petitioner's trial,
much of which was spent interviewing potential witnesses. He contended that another attorney in
his firm and his investigator spent countless hours interviewing forty to fifty potential witnesses.
Trial counsel testified that shortly before the trial, he conferred with the petitioner and two of his
family members about which witnesses would be called to testify. Trial counsel maintained that the
petitioner was "happy" with the proposed list of defense witnesses.

        Trial counsel believed that there was "a very credible theory of self-defense" based upon
evidence of a number of violent confrontations between the petitioner and the victim in which the
victim had been the first aggressor. He recalled that the petitioner informed him that a witness
named David Davis, a former sheriff, had witnessed one such altercation where the victim had fired
shots at the unarmed petitioner. It was trial counsel's belief that Davis’ testimony would not have
been helpful because of the time lapse between the altercation and the trial. Trial counsel also
recalled that it was his belief that Davis would not have been an effective witness. He also
remembered that the petitioner had suggested Jerry Grooms as a possible witness. After
investigating, he concluded that Grooms should not be called because there were questions about his
credibility.

        As to the second issue, trial counsel acknowledged that he had recommended that the
petitioner not testify at trial. He contended, however, that he advised the petitioner that the decision
was one he would have to make on his own. In making his recommendation to the petitioner, trial
counsel expressed particular concern about incriminating statements, which had been recorded, that
the petitioner had made to a third party. Trial counsel explained that while the trial court had ruled
prior to trial that the tape would be inadmissible in the state's case-in-chief, it had determined that
the tape could be used to impeach the petitioner during any cross-examination. According to trial
counsel, the petitioner indicated at the close of the proof that he did not wish to take the stand.

        At the evidentiary hearing, David Davis, a former sheriff, testified that he had witnessed a
prior violent confrontation between the petitioner and the victim at his business, South Greene


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Market. He recalled that during the altercation, the victim fired a number of shots at the petitioner
as the petitioner sped away in his vehicle. According to Davis, the incident occurred "eight or nine
years, maybe ten years" prior to the shooting which resulted in the victim's death. Davis testified that
he remembered an occasion when the petitioner came to his store to hide, explaining that the victim
was chasing him. Davis stated that the victim sometimes carried a pistol and had once threatened
to kill the defendant. Davis testified that he had tried to contact trial counsel prior to the petitioner's
trial and had actually spoken to a secretary. During cross-examination, Davis acknowledged that his
purpose in contacting trial counsel was to inform him that Jerry Grooms was willing to testify for
the defense. Davis stated that he never anticipated being a witness for the defense.

        Jerry Grooms, who claimed at the evidentiary hearing that he was never contacted by trial
counsel or any of his employees in advance of the trial, testified that he had witnessed three violent
altercations between the petitioner and the victim. He recalled that on one occasion, the victim shot
at the petitioner while the petitioner sat in his car in the parking lot of Davis' business. Grooms
claimed that the victim continued to fire at the petitioner's car as he drove away.

        Danny Cutshaw,1 who had worked at a bar call the Starlite, testified that he knew the
petitioner and the victim. According to Cutshaw, the victim often carried a weapon and had fired
shots at him some ten years earlier. Cutshaw also recalled that the victim had threatened to kill the
petitioner. Cutshaw acknowledged that he was contacted by trial counsel in advance of the trial but
could not recall the content of their conversation.

         Lisa Hensley testified that she had observed an altercation between the petitioner and the
victim "some years back" at the Starlite Club. She recalled that the victim had grabbed the petitioner
from behind, pulled his jacket over his head, and pushed the petitioner to the ground. Hensley
testified that the victim "just started flailing on [the petitioner], just left and right," until club security
intervened. According to Ms. Hensley, the victim would often drive back and forth in front of the
petitioner's house "fishtailing and spinning gravels." Ms. Hensley claimed that she was never
contacted by trial counsel.

         Shirley Thomas, the petitioner's mother, testified that she was present when trial counsel told
the petitioner that the district attorney had offered a plea agreement which provided for seven years'
incarceration. Ms. Thomas claimed that trial counsel informed them that he had already rejected the
offer and estimated that the petitioner's chances for acquittal were "fifty-fifty." She conceded that
trial counsel had not actually indicated that an offer of seven years had been made, but instead stated
that he had discussed such an offer with the district attorney. Ms. Thomas acknowledged that before
trial, she and the petitioner both concurred in trial counsel's strategy regarding the selection of
defense witnesses.

      Debra Tweed, the petitioner's sister, remembered that trial counsel had hoped for a plea
agreement involving a seven-year sentence. She testified that trial counsel encouraged the petitioner


        1
            Cutshaw testified that if he was related to the petitioner, the relation wou ld be "distant."

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not to take the stand because the testimony of Dawn Smelcer, an eyewitness, would establish self-
defense. Ms. Tweed claimed that the petitioner indicated that he wanted to testify and trial counsel
suggested that the decision be delayed until the close of the other proof. Ms. Tweed never saw trial
counsel approach the petitioner before the close of proof, implying that the petitioner was not given
the opportunity to testify.

         The petitioner testified at the evidentiary hearing that trial counsel had advised him not to
testify, but indicated that he could make his final decision at the conclusion of the proof. He stated
that trial counsel believed that other witnesses' testimony would substantiate the self-defense theory.
According to the petitioner, trial counsel then closed the defense proof without reconsidering the
issue of his testifying. The petitioner testified that trial counsel explained afterward that he did so
because he believed that the petitioner would be acquitted. The petitioner stated that he was fearful
of the victim and killed him in self-defense. He also testified that he did not fire the gun
intentionally, but that it discharged accidentally. According to the petitioner, the victim had pointed
a gun at him on at least five occasions prior to the altercation that led to the victim's death.

        The petitioner also claimed that he had encouraged trial counsel to speak to Grooms and
Davis and trial counsel had promised to do so. He testified that the victim had pointed a gun at him
on at least five separate occasions and that he had provided trial counsel with the names of witnesses
to each of the incidents. The petitioner contended that trial counsel had led him to believe that "he
was going to beat this." During cross-examination, the petitioner conceded that trial counsel had
called a number of witness who testified about prior altercations. While he was unaware whether
the state had actually offered a plea agreement, he claimed that his trial counsel had represented that
such a deal was available.

       The post-conviction court, accrediting the testimony of trial counsel, concluded that trial
counsel's performance was not deficient:

        The evidence and the record clearly show that [trial counsel] thoroughly investigated
        the case, called all relevant witnesses he was allowed to call, asked all relevant
        questions . . . and left no stone unturned in his representation of the petitioner.

The post-conviction court also concluded that “[t]he petitioner was advised of his right to testify .
. . and [had] personally made an informed decision not to testify.”

         In a post-conviction proceeding, the petitioner bears the burden of proving his allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Claims of ineffective assistance
of counsel are regarded as mixed questions of law and fact. State v. Honeycutt, 54 S.W.3d 762,
766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings of
fact made by the trial court are conclusive and will not be disturbed unless the evidence contained
in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App.
1988). The burden is on the petitioner to show that the evidence preponderated against those
findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The credibility of the


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witnesses and the weight and value to be afforded their testimony are questions to be resolved by the
trial court. Bates v. State, 973 S.W.2d 615 (Tenn. Crim. App. 1997). When reviewing the
application of law to those factual findings, however, our review is de novo, and the trial court's
conclusions of law are given no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457-58
(Tenn. 2001); see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

        In this appeal, the petitioner asserts that he was denied the effective assistance of counsel.
He claims that his trial counsel was ineffective for failing to fully investigate the case and call certain
witnesses. The petitioner also contends that trial counsel prevented him from testifying in his own
behalf.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, a failure to prove
        either deficiency or prejudice provides a sufficient basis to deny relief on the
        ineffective assistance claim. Indeed, a court need not address the components in any
        particular order or even address both if the defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Here, trial counsel testified that some forty separate witnesses were interviewed during
pretrial preparations. He stated that he did not call Davis as a witness because he felt that Davis'
testimony, which related to a relatively remote event (some ten years prior to trial), would not have
been helpful. It was his opinion that Davis would have been an effective witness. Trial counsel
explained that Grooms was not called to testify because there were questions about his credibility.

        Our review indicates that trial counsel was able to establish the contentious nature of the
relationship between the victim and the petitioner and that the victim was typically the first
aggressor. See Cutshaw, No. 03C01-9711-CC-00521 (Tenn. Crim. App., at Knoxville, Nov. 23,


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1999). The account provided by Ms. Smelcer established that the victim dove at the petitioner and
the gun discharged, killing the victim. Ms. Smelcer's testimony also established that the victim had
been looking for the petitioner to continue the fight that began at the Starlite Club. Thomas Cooter,
who was with the petitioner on the night of the shooting, testified that although he originally told
police that the petitioner went home to get his gun after fighting with the victim at the Starlite, he
later realized that the rifle had been in the petitioner's truck throughout the night. He stated that he
and the petitioner were on their way to the petitioner's home when they encountered the victim, Ms.
Smelcer, and Thomas on Arlie Waddell Road. Cooter recalled telling the petitioner to leave the rifle
in the truck. He explained that the petitioner answered that he needed the weapon because the victim
had shot at him before. According to Cooter, the petitioner remarked after the shooting that he had
no choice but to shoot the victim.

        Several witnesses, including those called by both the state and the defense, testified to the
contentious nature of the relationship between the petitioner and the victim. Becky Griggs, a defense
witness, testified that the victim threatened on a number of occasions to "kill the s-o-b," referring
to the petitioner. Janice Partin, another defense witness, recalled that the victim had once tried to
use his car to run over the petitioner in the parking lot of the South Greene Market. Jake Albert
Reed, the petitioner's uncle, testified that the victim started a violent altercation with the petitioner
at a time when the petitioner was unable to defend himself due to injuries sustained in a car accident.
Shirley Cutshaw Thomas, the petitioner's mother, testified that she recovered a gun from a ditch
where the petitioner and the victim had been fighting outside her home on Arlie Waddell Road.

        On direct appeal, this court determined that "[a]lthough the defendant presented testimony
to support his claim of self-defense, the State presented evidence to show the defendant did not use
deadly force as a result of a reasonable belief he was in imminent danger. We hold that the jury's
rejection of the defendant's claim of self-defense and the verdict of guilty of second degree murder
are supported by the evidence presented."

        The selection of which specific witnesses, among many possible choices, will testify at trial
qualifies as a tactical decision. The experience and abilities of trial counsel may be taken into
account by the trial judge in assessing the merits of an ineffective assistance claim. Although trial
counsel may be questioned for failing to call a witness who could support the defense theory, there
is no deficiency in performance when the theory has been established through other witnesses. The
defense was not successful because the jury chose to place its emphasis on the events at the time of
the shooting, which involved the petitioner's shooting an unarmed victim, rather than the prior
altercations. Here, trial counsel stated a basis for choosing some witnesses over others. Under these
circumstances, this court cannot say that the evidence preponderates against the judgment of the
post-conviction court.

         As to the petitioner's second complaint, that he was deprived of the opportunity to testify, it
is well established that a criminal defendant has a constitutional right to give testimony under both
the state and federal constitutions. See Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999). Article
I, section 9 of the Tennessee Constitution has been interpreted to require that “in all criminal


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prosecutions the accused has the right to testify as a witness in his own behalf and to be represented
by counsel.” Id. (citing State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976)). In Rock v. Arkansas,
483 U.S. 44, 50 (1987), the United States Supreme Court declared that the right of a criminal
defendant to testify in his own behalf was essential to the due process of law. Because the right to
testify is fundamental, it may only be waived by the defendant. Momon, 18 S.W.3d at 161 (citing
Jones v. Barnes, 463 U.S. 745 (1983); State v. Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998);
Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987)).

        In Momon, our supreme court held that as a procedural safeguard, the waiver of the
defendant’s right to testify should be attained through a voir dire of the defendant in open court.
Momon, 18 S.W.3d at 162. The court noted, however, that “neither the right to testify discussed
herein, nor the procedural protections adopted to preserve that right are new constitutional rules
which must be retroactively applied.” Id. at 162-63. Moreover, our high court stated that the
safeguards announced in Momon were prophylactic in nature and not constitutionally required. Id.

       The petitioner’s trial occurred in 1997, some two years before the supreme court’s decision
in Momon. At that time, a voir dire of the defendant regarding the waiver of the right to testify was
not required. Prior to the supreme court’s holding in Momon, a petitioner’s claim that his counsel
prevented him from testifying in his own behalf was treated like any other ground asserted for a
claim of ineffective assistance of counsel.            See, e.g., Shone King v. State, No.
01C01-9709-CR-00408 (Tenn. Crim. App., at Nashville, Dec. 30, 1998).

       Here, the trial court accredited the testimony of trial counsel, concluding that the petitioner
knowingly and voluntarily agreed to follow counsel’s advice against testifying in his own behalf.
The petitioner candidly acknowledged that trial counsel explained his right to testify but advised him
against taking the stand due to the likelihood that he would be impeached with his prior
incriminatory statements. Further, that the petitioner now asserts that the gun accidentally
discharged as the victim lunged at him, appears to be inconsistent with the theory of self-defense
proposed during the original trial. Obviously, presenting evidence consistent with the theory of
defense is a sound trial strategy.

        In our view, trial counsel’s advice that the petitioner refrain from testifying did not render
his performance deficient. Moreover, the petitioner failed to show that counsel unilaterally deprived
him of the right to testify. See Gregory Morgan v. State, No. 03C01-9611-CR-00404 (Tenn. Crim.
App., at Knoxville, Jan. 15, 1999) (holding that petitioner was not entitled to post-conviction relief
where his trial counsel advised him against, but did not prohibit him from, testifying in his own
behalf).

       Accordingly, the judgment of the trial court is affirmed.



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      GARY R. WADE, PRESIDING JUDGE




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