         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                              AT KNOXVILLE                    June 4, 1999

                                                            Cecil Crowson, Jr.
                         APRIL 1999 SESSION                 Appellate C ourt
                                                                Clerk



LEONARD LEBRON ROSS,               )
                                   )    NO. 03C01-9802-CR-00077
      Appellant,                   )
                                   )    HAMILTON COUNTY
VS.                                )
                                   )    HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:

JOHN A. SHOAF III                       PAUL G. SUMMERS
735 Broad Street, Suite 606             Attorney General and Reporter
Chattanooga, TN 37402-1804
                                        ELLEN H. POLLACK
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM H. COX III
                                        District Attorney General

                                        MARK A. HOOTON
                                        Assistant District Attorney General
                                        600 Market Street, Suite 310
                                        Chattanooga, TN 37402




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       Petitioner appeals the denial of his petition for post-conviction relief. A

Hamilton County jury found him guilty of burglary, attempted second degree murder,

and especially aggravated robbery. The trial court sentenced petitioner to an

effective sentence of thirty-five years. Petitioner now claims he received ineffective

assistance of counsel.1 Upon a complete review of the record, we conclude the

evidence does not preponderate against the post-conviction court’s findings that

counsel was effective. Thus, we AFFIRM the dismissal of the petition.



                             I. PROCEDURAL HISTORY



       In October 1993, petitioner went to trial and was convicted of especially

aggravated robbery, attempted second degree murder, and burglary. Petitioner

received sentences of twenty-two, ten, and three years, respectively. The trial court

ordered all sentences to run consecutively for an effective term of thirty-five years.



       On direct appeal, a panel of this Court affirmed the convictions and

sentences imposed by the trial court. See State v. Leonard Lebron Ross, C.C.A.

No. 03C01-9404-CR-00153, Hamilton County (Tenn. Crim. App. filed June 15,

1995, at Knoxville). The Tennessee Supreme Court granted permission to appeal

and remanded the cause to this Court for reconsideration of sentencing in light of

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Upon remand, this Court

again affirmed the trial court’s sentencing decision. State v. Leonard Lebron Ross,

C.C.A. No. 03C01-9404-CR-00153, Hamilton County (Tenn. Crim. App. filed April

10, 1996, refiled August 15, 1996, at Knoxville).




       1
         Petitioner’s brief combines a statement of facts and issues within which it
identifies numerous issues for appeal. However, the majority of the allegations constitute
sub-parts to a claim of ineffective assistance of counsel.

                                            2
       On July 1, 1996, petitioner filed a pro se petition for post-conviction relief

primarily alleging ineffective assistance of counsel both at trial and on appeal. After

an evidentiary hearing, the post-conviction court found the allegations to be without

merit and entered an order denying post-conviction relief. This appeal followed.



                                     II. FACTS

                                       A. Trial

       At trial, the state presented evidence that petitioner and two co-defendants

entered the home of Mary Sanders, a seventy-nine year old great-grandmother,

beat her with a hammer, and robbed her of her television in order to buy crack

cocaine. The physical evidence placing petitioner at the scene was a latent

fingerprint on a watch case in the victim’s bedroom.           Furthermore, the co-

defendants testified against petitioner.



                                B. Post-Conviction

       Petitioner’s brief presents numerous allegations in support of his claim for

post-conviction relief. Most of those allegations relate to ineffective assistance of

counsel, and can be consolidated into the following:

       (1)    Trial counsel failed to produce expert testimony relating
              to the accuracy of latent fingerprints, or to introduce
              other testimony showing petitioner had been in the
              victim’s residence many times;

       (2)    Trial counsel failed to obtain information from the state
              regarding petitioner’s statements to law enforcement;

       (3)    Trial counsel failed to object to the repetitive
              examination of certain witnesses;

       (4)    Trial counsel failed to object to co-defendant Owens’
              speculation about petitioner’s motive for handing her a
              pillow;

       (5)    Trial counsel failed to emphasize in closing argument
              that co-defendant Owens was an admitted liar;

       (6)    Trial counsel failed to object to the assistant district
              attorney’s use of overly-inflammatory statements in
              closing argument;

       (7)    Trial counsel failed to file a petition for re-hearing
              regarding this Court’s opinion on direct appeal;

                                           3
       (8)    Trial counsel failed to challenge the trial court’s denial
              of a continuance in his motion for new trial;

       (9)    Trial counsel failed to interview petitioner’s co-
              defendants in anticipation that they might testify against
              petitioner;

       (10)   Trial counsel failed to attack the state’s failure to arraign
              petitioner within seventy-two hours of his arrest; and

       (11)   Trial counsel failed to offer individualized instructions
              concerning non-statutory mitigating circumstances.

Allegations relating to previously determined issues include:

       (1)    The trial court erred by admitting petitioner’s first
              statement into evidence;

       (2)    The trial court erred by its imposition of consecutive
              sentences; and

       (3)    The trial court erred by its imposition of a greater
              effective sentence than received by co-defendant
              Owens who actually hit the victim in the head with a
              hammer.



       The post-conviction court conducted an evidentiary hearing and received

testimony from petitioner and trial counsel. Petitioner generally testified that he did

not believe he was proven guilty and complained that trial counsel failed to protect

his constitutional rights. Petitioner complained that counsel failed to point out

inconsistency in the proof and to emphasize the co-defendants’ conflicting stories.



       Trial counsel was an experienced criminal defense attorney. His recollection

of trial preparation in this case included several meetings with petitioner and

petitioner’s active participation in the tactical, decision-making process.



       Counsel obtained the preliminary hearing transcript, information about or

copies of petitioner’s statements to investigators, and talked to the district attorney

regarding the fingerprint evidence which put petitioner in the victim’s home. In

general, he assured that the evidence was proper and filed an unsuccessful motion

to suppress the statements petitioner gave to police.




                                           4
       According to trial counsel, there were a number of possible defenses based

upon what petitioner told him happened that night. He reviewed each with petitioner

and let petitioner make the final decision regarding which to use at trial.2 However,

the co-defendants’ testimony against petitioner completely controverted his claim

that he went back to the house to help the victim after co-defendant Owens

committed the offenses.



       The post-conviction court determined that the petitioner failed to prove his

allegations and entered an order of dismissal.



                           IV. STANDARDS OF REVIEW

                                 A. Post-Conviction

                The trial judge's findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.

Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by the trial court’s findings unless the evidence in

the record preponderates against those findings. Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997);

Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996).



                       B. Ineffective Assistance of Counsel

           This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive



       2
         According to trial counsel, an alibi defense was not presented because petitioner
admitted being in the victim’s home the morning of the crimes. Furthermore, this
admission negated the need to present testimony challenging the fingerprint or explaining
its presence.

                                            5
him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler, 789 S.W.2d at 899.



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104

S.Ct. at 2065; Alley, 958 S.W.2d at 149; Hicks v. State, 983 S.W.2d 240, 246

(Tenn. Crim. App. 1998). Therefore, in order to prove a deficiency, a petitioner

must show that counsel’s acts or omissions were so serious as to fall below an

objective standard of reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Henley, 960 S.W.2d at 579; Goad,

938 S.W.2d at 369.



                  V. DISPOSITION OF PETITIONER’S CLAIMS



       We begin by noting the three allegations relating to errors by the trial court

have been previously determined by this Court on direct appeal. See State v.

Leonard Lebron Ross, C.C.A. No. 03C01-9404-CR-00153, Hamilton County (Tenn.

Crim. App. filed April 10, 1996, refiled August 15, 1996, at Knoxville). They may not

be re-visited in a post-conviction proceeding. Tenn. Code Ann. § 40-30-206(h).

       We now address each of the other eleven allegations raised with regard to

ineffective assistance of counsel:

                                          (1)

       Petitioner contends trial counsel should have presented expert testimony to

challenge the accuracy of latent fingerprints, or testimony which offered an

alternative explanation for the presence of his fingerprint in the victim’s home. In

his statement to law enforcement the petitioner said he went in the house after a co-


                                          6
defendant committed the crimes. Under these circumstances, there was no need

to challenge the accuracy of the fingerprint or offer further evidence explaining the

fingerprint. This issue is without merit.



                                            (2)

       Petitioner claims trial counsel failed to obtain information regarding his

statements to the police. However, trial counsel testified he knew about the

statements and filed a motion to suppress. Thus, this issue is without merit.



                                            (3)

       Petitioner argues that trial counsel was deficient for failing to object to

repetitive questioning of witnesses. Trial counsel testified he did not object unless

or until such questioning became excessive. Petitioner has failed to show what

benefit would be derived from such objection, or what prejudice was suffered by

such failure. This issue is without merit.



                                            (4)

       Petitioner contends trial counsel was deficient for failing to object to

speculation by co-defendant Owens regarding the pillow petitioner handed her to

smother the victim. At the evidentiary hearing, trial counsel offered a tactical

explanation for not making an objection. Furthermore, petitioner has failed to show

that such objection would have been sustained by the trial court. This issue is

without merit.



                                            (5)

       Petitioner claims trial counsel should have emphasized co-defendant Owens’

untruthfulness to police. Petitioner has failed to show a reasonable probability that

emphasizing this in counsel’s closing argument would have changed the outcome

of the proceeding. This issue is without merit.




                                            7
                                             (6)

         Petitioner charges trial counsel with failure to object to the state’s use of

overly-inflammatory statements in its closing argument. Petitioner has failed to

demonstrate any prejudice as a result of the comments. This issue is without merit.



                                             (7)

         Petitioner claims that trial counsel was deficient for not filing a petition to re-

hear regarding this Court’s opinion issued in April 1996. There is no requirement

that appellate counsel file such a motion upon an adverse decision by this Court.

Furthermore, there has been no showing that such a petition would likely have been

granted. This issue is without merit.



                                             (8)

         Petitioner claims that trial counsel failed to challenge the trial court’s denial

of a continuance after the state added petitioner’s co-defendants as witnesses on

the morning of trial. While it is true that trial counsel did not raise the issue in his

motion for new trial, it was raised on appeal and determined on the merits by this

Court. Clearly, counsel’s failure did not prejudice petitioner. This issue is without

merit.



                                             (9)

         Petitioner further contends that trial counsel failed to interview the co-

defendants in anticipation of their testimony against petitioner at trial. Trial counsel

was given a full opportunity to cross-examine the co-defendants at trial.

Furthermore, petitioner has failed to produce evidence showing that such interviews

would have changed counsel’s strategy at trial, or changed the outcome. This issue

is without merit.



                                            (10)




                                             8
       Petitioner charges trial counsel should have attacked the state’s failure to

arraign petitioner within seventy-two hours of his arrest. This issue was not pursued

at the post-conviction hearing. The record before this Court does not establish any

deficiency by trial counsel in this regard. This issue is without merit.



                                          (11)

       Petitioner challenges trial counsel’s failure to offer individualized instructions

concerning non-statutory mitigating circumstances. This allegation relates to the

presentation of mitigating circumstances in the penalty phase of a first degree

murder trial where the jury determines the sentence. It has no application to the

case at bar. This issue is without merit.



                                 VI. CONCLUSION



       Petitioner has failed to demonstrate that any of the alleged deficiencies

caused him prejudice; nor does the record preponderate against the post-conviction

court’s findings that trial counsel in this case was effective. Based upon the

foregoing, we AFFIRM the judgment of the court below.




                                                    __________________________
                                                    JOE G. RILEY, JUDGE



                                            9
CONCUR:




__________________________
JERRY L. SMITH, JUDGE




__________________________
NORMA McGEE OGLE, JUDGE




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