            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs September 13, 2005

                          BOBBY LEE v. STATE OF TENNESSEE

                          Appeal from the Circuit Court for Obion County
                            No. 4-407    William B. Acree, Jr., Judge



                       No. W2005-00188-CCA-R3-PC - Filed October 5, 2005


The Appellant, Bobby Lee, appeals the Obion County Circuit Court’s denial of his petition for post-
conviction relief. Lee was convicted of attempted first degree murder and received a sixty-year
Department of Correction sentence as a career offender. On appeal, Lee contends that trial counsel’s
failure to call favorable witnesses denied him his Sixth Amendment right to the effective assistance
of counsel. After review of the record, we affirm the denial of post-conviction relief.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL, J., joined.

Joseph P. Atnip, District Public Defender, Dresden, Tennessee, for the Appellant, Bobby Lee.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and
James T. Cannon, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                OPINION

                                           Procedural History

           Following an evidentiary hearing, the post-conviction court entered the following findings
of fact:
                    The petitioner, Bobby Lee, was indicted in the Criminal Court of Obion
           County . . . , Tennessee in October of 2001, for the crime of criminal conspiracy to
           commit first degree murder, criminal attempt to commit first degree murder and
           aggravated assault. The indictment resulted from the shooting of one Terry Scates,
           which occurred on September 19, 2001. According to the evidence presented at the
           trial, the petitioner shot Mr. Scates several times with a sawed off 12 gauge shotgun.
           Miraculously, Scates lived.
               The case was tried on September 29, 2003, and the jury found the petitioner
       guilty of attempt to commit first degree murder and aggravated assault[, which were
       later merged]. The petitioner was sentenced as a career offender to 60 years in the
       Tennessee Department of Correction[ ].

       ....

               The case was appealed to the Court of Criminal Appeals upon the sole issue
       that the jury venire was unconstitutionally empaneled due to a lack of adequate
       representation of African Americans. The appeal was denied. [State v. Bobby Lee,
       No. W2003-02948-CCA-R3-CD (Tenn. Crim. App. at Jackson, Aug. 11, 2004)].

        On November 2, 2004, the Appellant filed a pro se petition for post-conviction relief alleging
numerous grounds for relief, including ineffective assistance of counsel. As requested, counsel was
appointed, and a hearing was held on January 5, 2005, at which trial counsel and the Appellant were
called as the only witnesses. The Appellant testified that during pretrial discussions with trial
counsel, he asked counsel to subpoena two or three witnesses who would testify favorably for him.
He stated that one witness would have testified that the victim was looking for the Appellant with
a ball bat and another witness would have testified that the victim had a butcher knife prior to the
shooting. However, trial counsel testified that the Appellant never provided the names of any
witnesses to be called at trial. Counsel stated that his investigation revealed that the Appellant and
the victim had a confrontation and that the Appellant, while displaying a shotgun, proclaimed in the
presence of six witnesses that he intended to “get” the victim. All six witnesses saw the Appellant
leave in pursuit of the victim. Trial counsel acknowledged that he was limited in presenting a viable
defense based on the Appellant’s nineteen prior felony convictions. After hearing the proof
presented, the post-conviction court determined that all grounds, except ineffective assistance of
counsel, had been waived or previously determined. The court further found that the ineffective
assistance claim was without merit and dismissed the petition by written order on January 10, 2005.
This appeal followed.

                                              Analysis

        On appeal, the Appellant has raised the single issue of ineffective assistance of counsel. To
succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden of
establishing the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f) (2003). The Appellant must demonstrate that counsel's representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. 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). This deference to the tactical decisions of trial counsel is dependent upon a showing that the


                                                 -2-
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992). It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
"reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068) (citations omitted).

        The issues of deficient performance by counsel and possible prejudice to the defense are
 mixed questions of law and fact. Id. at 461. "[A] trial court's findings of fact underlying a claim
of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied
with a presumption that those findings are correct unless the preponderance of the evidence is
otherwise." Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley
v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a
purely de novo standard with no presumption that the post-conviction court's findings are correct.
Id.

       The Appellant’s only assertion on appeal is that counsel was ineffective for failing to call two
or more witnesses who he contends would have assisted in his defense. In denying relief, the post-
conviction court concluded:

                The petitioner testified that there was a witness who would have testified that
       the victim had a baseball bat and that there was another witness who would have
       testified that the victim had a butcher knife. He said he told his attorney about these
       witnesses. This testimony was refuted by [trial counsel]. The Court finds that the
       testimony of [trial counsel] is credible and the testimony of the petitioner is not. The
       Court also notes that these alleged witnesses were not present at the post-conviction
       hearing to testify.

        We find nothing in the record to preponderate against the post-conviction court’s findings.
Questions concerning the credibility of witnesses, the weight and value given to their testimony, and
the factual issues raised by the evidence are to be resolved by the trier of fact. Henley, 960 S.W.2d
at 579. We will not reweigh or reevaluate the evidence or substitute our inferences for those drawn
by the post-conviction court. Id. at 579-80.

        Moreover, the Appellant’s argument must also fail because he failed to present any proof at
the post-conviction hearing, other than his own bare assertions, as to what the alleged witnesses
would have testified to had they been called at trial. When a petitioner claims that trial counsel
failed to interview or present a witness in support of his defense, the Appellant should present that
witness at the evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
The Appellant acknowledges his failure to present witnesses but asserts that his failure should be
excused because he offered testimony regarding the substance of what the witnesses’ testimony


                                                 -3-
would have been. That argument is misplaced. We cannot rely upon the Appellant’s own self-
serving statements. Because the Appellant failed to produce the witnesses, it would be speculative
to conclude that their testimony would have affected the outcome of the trial. Thus, the Appellant’s
allegation of ineffective assistance of counsel falls short of clear and convincing evidence. This
issue is without merit.

                                         CONCLUSION

       Based upon the foregoing, the denial of the Appellant’s petition for post-conviction relief is
affirmed.


                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -4-
