          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                           DECEMB ER SESSION, 1998          March 15, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

GLE N CL AYBO RN,                    )   C.C.A. NO. 02C01-9803-CR-00062
                                     )
            Appe llant,              )
                                     )   SHELBY COUNTY
V.                                   )
                                     )
                                     )   HON. JAMES C. BEASLEY, JUDGE
STATE OF TE NNE SSE E,               )
                                     )
            Appellee.                )   (POST -CON VICTIO N)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A.C. WHARTON                             JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

WALKER GWINN                             DOUGLAS D. HIMES
Assistant Public Defender                Assistant Attorney General
Criminal Justice Center, Suite 201       2nd Floor, Cordell Hull Building
201 Poplar Avenue                        425 Fifth Avenu e North
Memphis, TN 38103                        Nashville, TN 37243

                                         JOH N W. P IERO TTI
                                         District Attorn ey Ge neral

                                         CHRIS MARSHBURN
                                         Assistant District Attorney General
                                         Criminal Justice Center, Suite 301
                                         201 Poplar Avenue
                                         Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, Glen Clayborn, appeals the order of the Shelby County

Criminal Court dismissing his petitio n for po st-con viction re lief. In this appe al,

Petitioner argues that his trial counsel was ineffective. After a careful review of the

record, w e affirm the judgm ent of the tria l court.



       In August of 1994, Petitioner was found guilty of second degree murder and

reckless homicide for which he received an effective sentence of twenty-seven (27)

years. On Ju ne 10 , 1996 , this Co urt affirm ed his convic tions in his dire ct app eal,

State v. Glen D. Clayborne [sic], C.C.A. No. 02C01-9507-CR-00185, Shelby C ounty

(Tenn. Crim. App., Jackson, June 10, 1996), and th e suprem e court subs eque ntly

denied his application to ap peal on Jan uary 6, 1997. On May 1, 1997, Petitioner

filed a pro se post-conviction petition raising numerous issues.            His appointed

counsel filed a n otice th at the p etition would not be amended on November 19,

1997. Following a hearing, the trial court denied his petition for post-con viction relief,

finding that Petitioner had received the effective assistance of counsel and that any

other problems complained of were a result of Petitioner’s own untruthfulness.



       In this appeal, Petitioner specifically addresses only one allegation on the

ground of ineffe ctive as sistan ce of c ouns el: that his trial counsel failed to interview

two surprise witnesses. Although Petitioner purports to raise other issues through

implication, he do es no t supp ort thes e claim s with appropriate references to the

record or citations to authority, an d therefo re they are deem ed waive d. See Tenn.

Ct. Crim . App. R . 10(b); Te nn. R. A pp. P. 27 (a)(7).




                                            -2-
       The pertinent facts to the case are that Petitioner shot and killed his girlfriend.

At the time of the shooting , Petitioner’s girlfriend wa s pregn ant with his baby. The

viable fetus died as the result of suffocatio n attributab le to the gu nshot. Petition er’s

defense was that the shooting was an accident. Prior to trial, counsel questioned

Petitioner in detail about whether he had abused his girlfriend, however, Petitioner

denied any such abuse. In fact, when counse l’s pretrial investigation uncovered a

prior beating with a bat, Petitioner said it never happened. Nonetheless, his trial

counsel filed a pretrial motion to exclude any evidence of prior abuse. This motion

was denied by the trial court. Trial counsel renewed his motion at the beginning of

trial but the motion was overruled. Petitioner’s trial couns el testified at th e post-

conviction hearing in part as follows:

              I aske d Mr. C layborn in our discussion did he have any
              witness or did he -- since he wa s alleg ing tha t this was an
              acciden t, and I think that was the the ory of o ur cas e, I said
              do you know of anyone who w ould k now a ny spe cific
              incidents of harm that you’ve done to her so they co uld
              disprove that it was a n accide nt.

              So we did discuss whether anyone knew whether he had
              been violent with her be fore. I thin k that is something we
              discu ssed in deta il.

              Whether you ever b eaten th is lady befo re. W hether
              you’ve ever done any physical h arm to h er before . I said,
              if you have, I need to know. I think he denied it the wh ole
              time. He never sa id -- he always said I never did anything
              to her. And quite frankly I was quite surprised when it
              came up. . . . Becau se we h ad discu ssed it exte nsively. I
              mean, if we are g oing to have a theory of an accident, we
              better not have anything else that is going to prove that
              he’s pulled a gun on her before, that he’s beat her before,
              that he’s d one thing s before that was n ot an acc ident.


       On the morning of trial, Petitioner’s trial counsel saw Jeanetta Holmes and

Marqu ita Jones outside of the courtroom and he questioned Petitioner about them.




                                             -3-
Trial counsel recalled that Petitioner may have mentioned one of the ladies as being

his ex-girlfriend. However, Petitioner gave no ind ication that the y could poss ibly

testify as to the prior abuse between Petitioner and the victim. Trial counsel believed

any objection to them testifying base d upo n lack o f notice was w ithout m erit. It is

well-established that the endorsement requirement of Tenn. Code Ann. § 40-17-106

is directive, rath er than m andato ry. See State v. Hutchinson, 898 S.W.2d 161, 170

(Tenn. 1994); State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992). At trial, Holmes and

Jones testified to prior instances of abuse between Petitioner and his girlfriend.

Specifically, one o f the witn esse s testifie d that P etitione r had p ulled a gun on the

victim two weeks prior to her death. Petitioner told his attorney at that time that their

testimony was not true.



       Petitioner testified at the hearing that his trial counsel never discussed the

issue of prior abuse of the victim . Petition er state d that h e wou ld have told his

attorney about prior abuse if he had been asked. Petitioner did not tell his lawyer

that the victim had ob tained a protec tive order several years prior to the shooting.

Petitioner said that his trial counsel never asked him about a protective order, but

that again, he would have told him about it had he been asked.



       The post-conviction court found the following:

              Counsel also filed a Motion in Limine to preclude any
              testimony abou t mino r dom estic problems and an incident
              in which the petitioner/defendant pointed a pistol at the
              victim. [Trial cou nsel] testified that he kn ew of rumors of
              such incidents even tho ugh the petitioner/d efendant
              continued to tell him nothing had ever happened.
              Petitioner testified that he did no t tell [trial counsel] about
              a protective order ob tained agains t him by the vic tim
              because he as sum ed [trial c ouns el] wou ld find that out on
              his own. The Motion in Lim ine was denied pretrial and
              over couns el’s objectio n the pro of of the prio r acts were

                                            -4-
             allowed into evidence. The petitioner charges that his
             attorney failed to investigate and interview the two
             witnesses who testified as to the prior incident. Counsel
             testified that he did not discover who the witnesses were
             until trial date when the State produced them and u p until
             that point the petitioner had denied that he had ever done
             anything to the victim and the re were no witnesses to say
             differen tly. Had petitioner b een hone st with his attorney,
             such surprise witnesses could have been avoided. Once
             the State realized the defendant’s theory was going to be
             an accidental shooting those witnes ses b ecam e ma terial.
             The petitioner must bear the burden of lying to his attorney
             and being caught in said lie.

              ...

             As has previously been stated, the defendant chose to lie
             to his attorney and as a result his attorney was not able to
             prope rly advise him and protect his rights. Counsel
             attempted to limit th e testim ony by arguin g a mo tion in
             limine about some of the incidents, but counsel cannot be
             held respo nsible when a defe ndan t fails to tru thfully
             confide in his attorne y.


      In determining wheth er cou nsel p rovide d effec tive ass istanc e at trial, the court

must decid e whether counsel’s performance was within the range of competence

demanded of attorneys in criminal ca ses. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective a t trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petitioner resulting in a failure to

produc e a reliable result. Strickland v. Washington, 466 U.S. 668, 693, 104 S. C t.

2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849

S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0).

To satisfy the second prong the petitioner must show a reason able pro bability that,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regardin g petitione r’s guilt. Strickland, 466 U.S. at 695. This reasonable


                                            -5-
probab ility mus t be “su fficient to unde rmine confidence in the outcom e.” Harris v.

State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .



       When reviewing trial counsel’s actions, this Court should not use the bene fit

of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982 ). Cou nsel’s allege d error s sho uld be judged at

the time they were made in light of all facts an d circum stance s. Strickland, 466 U.S.

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



       In determ ining w hethe r this Petitioner has satisfie d thes e requ ireme nts, this

Court mus t give the findings of the trial court the weight of a jury verdict, and the

judgment of the trial court will not be reversed unless the evidence contained in the

record preponderates against the findings of fact made by the trial cour t. State v.

Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



       W e have re viewe d Petitio ner’s various claims and we find that Petitioner has

failed to present any evidence that shows that his attorney represented him in any

manner other than competently. We agree with the trial court’s findings. The

evidence contained in the record doe s not p repon derate again st the tria l court’s

finding tha t Petitioner re ceived the effective as sistance of couns el.




                                            -6-
       Based on all the foregoing, we a ffirm the trial c ourt’s d ismiss al of Pe titioner’s

petition for p ost-con viction relief.



                                     ____________________________________
                                     THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




                                             -7-
