         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 24, 2004

                 LARRY D. UPSHAW v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Knox County
                            No. 74710    Ray L. Jenkins, Judge



                                 No. E2003-02071-CCA-R3-PC
                                        March 26, 2004

The petitioner appeals the denial of his petition for post-conviction relief from his second degree
murder conviction, arguing that the post-conviction court erred in finding that his trial counsel
provided effective assistance at trial and on appeal. Following our review, we affirm the denial of
the petition.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE, JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Larry D. Upshaw.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

       The petitioner, Larry D. Upshaw, was convicted of second degree murder for the stabbing
death of an acquaintance and was sentenced to thirty-eight years in the Department of Correction.
His conviction was affirmed by this court on direct appeal, and the supreme court denied his
application for permission to appeal. See State v. Larry D. Upshaw, No. E2000-02262-CCA-R3-CD,
2001 WL 823400, at *1 (Tenn. Crim. App. July 23, 2001), perm. to appeal denied (Tenn. Dec. 17,
2001). The evidence presented against the petitioner, as set forth in the direct appeal opinion,
included the following:

                     On the night of September 24, 1998, Officer Chris Bell of the
               Knoxville Police Department was patrolling the Western Heights
               Housing Development when he received a call that a stabbing had
               just occurred in the area. Upon his arrival at the scene, he found that
               the victim, Leroy Page, had suffered a stab wound to the chest. A
               neighbor, Billie Asher, held a towel to the victim’s stomach area.
               Officer Bell determined that the victim was alive but unresponsive to
               questions.

               ....

                       Ava Cospy testified that she lived with the victim and that
               their relationship had extended over a period of five years. She
               recalled that when she arrived home from work at around 5:00 p.m.
               on the evening of the murder, the [petitioner] and the victim were in
               her kitchen. No one else was in the residence. She left for the
               grocery store and, upon her return, the two men were still in the
               kitchen. Ms. Cospy took a nap and when she awoke, the [petitioner]
               was the only other person in her house. The victim returned and Ms.
               Cospy left to purchase beer. Upon her return, the [petitioner] and
               victim were on the front porch. No others were present. About 10
               minutes later, Ms. Cospy heard the victim call to her from the porch,
               saying that he had been stabbed. No one else was on the porch. She
               then rushed across the street to call for an ambulance.

                       Billie Asher testified that the victim had introduced her to the
               [petitioner] earlier in the day. She recalled that after 5:00 p.m. on the
               night of the murder, she saw no one on the porch with the victim
               other than the [petitioner]. At one point during the evening, Ms.
               Asher went to the victim’s apartment in order to get a cigarette from
               Ms. Cospy. Some 15 to 20 minutes later, Ms. Cospy arrived at her
               door saying that the victim had been stabbed. As Ms. Asher attended
               to the victim, she asked, “Was the M.F. [that] did this to you sitting
               on the porch?” The victim responded, “[Y]eah.” When she asked
               whether “the man on the porch [did] this to [him],” the victim “shook
               his head” affirmatively and soon lost consciousness. Ms. Asher
               acknowledged that she did not use the [petitioner’s] name when she
               asked the question, explaining that she could not remember it.

Id. (footnote omitted).

        The petitioner filed a pro se petition for post-conviction relief on April 22, 2002, in which
he alleged ineffective assistance of trial counsel. Post-conviction counsel was appointed, and on
March 28, 2003, the petitioner filed an amended petition for post-conviction relief alleging that trial
counsel was ineffective, inter alia, for failing to adequately confer with him about the case, failing


                                                 -2-
to locate or interview witnesses, and failing to object to the admission of the victim’s dying
declaration, which was introduced through the testimony of Billie Asher. Although the petitioner
alleged several instances of ineffective assistance in his petition, his sole argument before this court
is that trial counsel was ineffective for failing to object to the victim’s dying declaration at trial and
for failing to raise the issue on direct appeal.

         The petitioner testified at the August 14, 2003, evidentiary hearing that trial counsel, who
represented him at trial and on appeal, discussed his case with him “[j]ust barely a little bit” prior
to trial. He complained in general about trial counsel’s failure to raise sufficient objections at trial
and, in particular, about his failure to object to the victim’s dying declaration. The petitioner
testified there were no eyewitnesses to the murder, and he believed he was convicted solely on the
basis of the victim’s communication with Asher. He said that, in addition to failing to object at trial,
trial counsel failed to raise the victim’s dying declaration as an issue on appeal. The petitioner also
complained that trial counsel failed to interview a man who jogged by the murder scene immediately
after the killing.

        On cross-examination, the petitioner acknowledged trial counsel came to see him in jail
“three or four times,” and talked with him about possible witnesses for his defense. According to
the petitioner, the “street people” who might have had useful information had relocated since the
time of the murder, and he was unable to provide counsel with any information to help his case.

         Trial counsel testified he had been practicing criminal law since 1986. He said he was
appointed to represent the petitioner in general sessions court and later in criminal court, and his
records reflected 34.8 hours he and his private investigator spent in consultation with the petitioner
or his sister, and fourteen visits with the petitioner in jail. Trial counsel said the petitioner provided
“[v]ery, very little” information to assist in his defense. The petitioner mentioned a potential witness
named Robinson who he claimed had been on the porch with him and the victim, but trial counsel’s
investigator was unable to locate that individual. Despite searching “every Kirkendol in . . . Knox
County,” his investigator was also unable to locate Robert Kirkendol, the jogger who told a police
investigator he had seen “some people running away getting into a car.” Trial counsel explained that
the police failed to get Kirkendol’s address or phone number when they interviewed him at the scene.
He said he cross-examined the police investigator about the information Kirkendol had provided,
but was unable to do anything more with the information because of their inability to find Kirkendol.

        Trial counsel testified he did not object to the victim’s statement to Asher, which, he said,
was an excited utterance rather than a dying declaration, because he saw no basis for an objection.
He said he called as an alibi witness the petitioner’s sister, who testified that the petitioner came
home shortly after 9:00 p.m. on the day of the murder. However, her credibility was called into
question by a statement she had given police in which she said the petitioner had arrived around
11:00 p.m. Trial counsel testified he did not believe there was anything else he could have done in
his investigation and preparation of the case. On cross-examination, he acknowledged there were
no eyewitnesses to the killing, and that it was established through police testimony that the house
where the murder occurred was a “crack cocaine house,” frequented by a number of different people.


                                                   -3-
        At the conclusion of the hearing, the post-conviction court issued oral findings of fact and
conclusions of law in which it, inter alia, accredited trial counsel’s testimony regarding the amount
of time he had spent in preparation for the case and found that he had done an “excellent job” of
representing the petitioner. Accordingly, the court concluded the petitioner had failed to show by
clear and convincing evidence that he was denied the effective assistance of counsel and denied the
petition for post-conviction relief. Thereafter, the petitioner filed a timely appeal to this court,
arguing the post-conviction court erred in finding he received the effective assistance of trial counsel.

                                             ANALYSIS

                               Post-Conviction Standard of Review

        The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held in
the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). However, review of the post-conviction court’s
application of the law to the facts of the case is de novo, with no presumption of correctness. See
Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
presents mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns, 6 S.W.3d at 461.

                                  Ineffective Assistance of Counsel

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.




                                                  -4-
         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        Initially, we note that, although the post-conviction court issued fairly extensive and detailed
oral findings at the conclusion of the evidentiary hearing, there are no written findings of fact or
conclusions of law in the technical record. Following a post-conviction hearing, the post-conviction
court is required to enter written findings of fact and conclusions of law addressing all grounds for
relief. See Tenn. Code Ann. § 40-30-211(b); Tenn. Sup. Ct. R. 28, § 9(A). Nevertheless, the post-
conviction court’s oral pronouncement of its findings from the bench does not necessarily require
reversal and can be harmless error. See State v. Higgins, 729 S.W.2d 288, 290-91 (Tenn. Crim. App.
1987). Here, the post-conviction court’s oral findings and conclusions are sufficiently
comprehensive to allow for proper appellate review, and hence, we conclude that its failure to enter
written findings of fact and conclusions of law constitutes harmless error. See Tenn. R. App. P.
36(b).

        The petitioner concedes on appeal that trial counsel was “well prepared.” Nonetheless, he
argues trial counsel provided ineffective assistance for failing to object to the introduction of the
victim’s statement at trial or to raise the admission of the hearsay statement as an issue on appeal.
The petitioner asserts that, regardless of trial counsel’s belief with respect to the admissibility of the
statement, he “should have objected and argued the issue at trial and on appeal, based [on] the fact
that this area of what is or is not admissible hearsay exception is the subject of to [sic] many legal
books and law review articles to count.” The petitioner further asserts that by failing to object to the
victim’s statement, “trial counsel allowed the State to introduce very damaging and prejudicial
evidence unchallenged; which evidence if ruled inadmissible by the trial court would have changed
the outcome of the trial.”

        With respect to this issue, the post-conviction court found as follows:

                The [petitioner] stated one objection, or one – one instance of
                ineffective assistance in that the – his trial attorney failed to object to
                what he . . . styled as a dying declaration. [Trial counsel] testified that
                it was actually an excited utterance. Well, it would have had to have
                been an excited motion since no words were spoken by the deceased.
                That he made no objection because in his opinion there was no basis
                for an objection, or any other objections were not made since he felt
                that . . . there was no basis.

                ....


                                                   -5-
                       The Court fails to see any action or inaction taken by [trial
               counsel] to rise to the level of Baxter v. Rose, 523 S.W.2d 930, or
               that the standards of Strickland v. Washington, 466 U.S. 668 have
               been violated. The Court is of the opinion that under the
               circumstances that faced [trial counsel] his representation far
               exceeded the standards of those two cases. And that with the raw
               material he was presented with he did an excellent job in representing
               the petitioner/defendant. For the above reasons, the Petition for Post
               Conviction Relief will be denied.

         The record supports the findings and conclusions of the post-conviction court. Trial counsel
testified he thought the victim’s communication with Asher was legally admissible under the excited
utterance exception to the rule against hearsay, and he did not object because he saw no legitimate
basis for doing so. By trial counsel’s view, the victim’s exchange with Ms. Asher, identifying the
petitioner as his assailant, was admissible as an excited utterance. The petitioner offered no evidence
to the contrary, other than his opinion that trial counsel should have objected to the statement
because he was not the perpetrator. We note that this statement occurred, just after the stabbing had
occurred, as the victim lay mortally wounded and quickly lost consciousness, apparently dying soon
thereafter without regaining consciousness. Thus, this exchange was arguably admissible as an
excited utterance, as trial counsel believed. See State v. Summerall, 926 S.W.2d 272, 277-78 (Tenn.
Crim. App. 1995) (victim’s statement that “Cocaine did it” was admissible as an excited utterance,
when victim had just been shot and his speech was “rapid” and “excited”); see generally Neil P.
Cohen et al., Tennessee Law of Evidence, § 8.07 (4th ed. 2000). Furthermore, even if trial counsel
were deficient for failing to object to the evidence, the petitioner still has not shown by clear and
convincing evidence how counsel’s alleged deficiency prejudiced the outcome of his trial, as he has
not shown a reasonable probability exists that the trial court would have sustained the objection.

                                          CONCLUSION

       Based on our review, we conclude that the petitioner has failed to meet his burden of showing
he was denied the effective assistance of counsel at trial or on appeal. Accordingly, we affirm the
post-conviction court’s denial of the petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                 -6-
