      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                      JUNE 1997 SESSION
             AT JACKSON
                                                   FILED
                                                      July 23, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk


STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9612-CR-00479
      Appellee,                  )
                                 ) Shelby County
V.                               )
                                 ) Honorable Bernie Weinman, Judge
                                 )
DWAYNE E. ANDERSON,              ) (Burglary)
                                 )
      Appellant.                 )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Gerald Stanley Green                 John Knox Walkup
Attorney at Law                      Attorney General & Reporter
301 Washington Avenue, Suite 302
Memphis, TN 38103-1911               Elizabeth T. Ryan
                                     Assistant Attorney General
At Trial                             450 James Robertson Parkway
Lenal Anderson, Jr.                  Nashville, TN 37243-0493
Attorney at Law
100 North Main Building, Suite 3300 William L. Gibbons
Memphis, TN 38103                   District Attorney General

                                     Perry S. Hayes
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103-1947



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                                                OPINION


            The appellant, Dwayne E. Anderson, was convicted by a jury of burglary

and two counts of theft of property over $1000. He was classified as a career

offender and received an effective sentence of 12 years incarceration. He

appeals alleging that he received ineffective assistance of counsel. Upon

review, we affirm.



            The appellant contends that his trial counsel's inadequate preparation

deprived him of a fair trial. Specifically, he claims that his counsel did not have

an adequate amount of time to "investigate and explore any of the items

discovered" in his case.1



            Prior to trial, the appellant's counsel moved for a continuance. He based

his motion on the fact that the prosecution had only responded to his discovery

request three days before trial. Also, he stated that he needed more time to

explore a possible alibi defense. The judge denied the continuance.



            At the hearing on the motion for new trial, counsel reiterated the fact that

he was not prepared for trial. He claimed that his lack of preparation deprived

the appellant of his constitutionally guaranteed right to effective assistance. The

trial judge denied the motion finding that the appellant received effective

assistance. Furthermore, the trial judge stated that the appellant had failed to

show that his counsel's actions or inactions prejudiced him in any way.



            The test to determine whether or not counsel provided effective

assistance at trial is whether or not his or her performance was within the range



            1
              Th e ap pellan t’s cou nse l, during his m otion for a co ntinu anc e, state d tha t the sta te ha d failed to tim ely resp ond to
his m otio ns fo r disc ov ery. H e cla im ed tha t the stat e p oss ess ed a sh irt fou nd at th e crim e sc en e a nd ph oto gra ph s of the crim e
scene. These items, he alleges, were not timely delivered to him. The trial judge stated that the appellant's counsel was
dilatory in w aiting u ntil the trial d ate to com plain a bou t disco very p roblem s. Ne verth eless , the sh irt was not intro duc ed in to
ev iden ce a t trial a nd ap pa ren tly, no ph oto gra ph s exis ted . Fu rthe rm ore , the trial ju dg e d id no t find the shirt to be excu lpat ory in
nature. In fact, at the hearing on the m otion for new trial, he allowed the appe llant's attorney one week to review the evidence
to determine if it was exculpatory in any way. Nothing in the record suggests that appellant's counsel found anything that
wo uld h ave help ed h is client.


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of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washingtion, 466 U.S. 668, 104

S.Ct 2052, 80 L.Ed. 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82

L.Ed.2d 864 (1984). Under Strickland there is a two-prong test which places the

burden on the appellant to show that (1) the representation was deficient, and (2)

the deficient representation prejudiced the defense to the point of depriving the

defendant of a fair trial with a reliable result. Id. at 687.                             However, if this Court

finds that the appellant suffered no prejudice, any deficiency in his trial counsel is

considered harmless. Strickland, 466 U.S. at 693. Therefore, even if the

appellant’s counsel was ineffective, he must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 693.



          The record reveals that the appellant's trial counsel provided effective

representation. His attorney cross-examined all of the state's witnesses. He

effectively questioned and cast doubt on a police officer's ability to identify the

appellant. He elicited the fact that the appellant's fingerprints were not found on

the stolen merchandise or on anything associated with the burglary. His

performance was within the range of competence demanded of attorneys in

criminal trials. Unfortunately, for the appellant, the state had a substantial case

against him.2



          The appellant has not carried the burden of proving that the results of his

trial would have been different had he received more effective representation. In

fact, at the hearing on the motion for new trial, the trial judge asked the

appellant's trial counsel what he would have done differently if he had been more

prepared. He was unable to articulate a reasonable strategy. The appellant

received effective assistance and was not prejudiced by his counsel's

representation. We affirm the judgment of the trial court.




          2
           The appellant was identified by a police officer pushing a grocery basket behind a building that had just been
burglarized. The grocery basket contained stolen merchandise taken from the building. Upon seeing the police, the appellant
aba ndo ned the sto len g ood s an d fled. H e w as fo und lying in the grass close to the buildin g an d w as a ppre hen ded .


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                               ________________________________
                               PAUL G. SUMMERS, Judge


CONCUR:




___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




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