         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT KNOXVILLE             FILED
                       APRIL 1998 SESSION           July 14, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk



STATE OF TENNESSEE,        )
                           ) C.C.A. No. 03C01-9707-CR-00317
      Appellee,            )
                           ) Campbell County
V.                         )
                           ) Honorable Lee Asbury, Judge
RONNIE WALDEN,             )
                           ) (First Degree Murder - Life)
      Appellant.           )




FOR THE APPELLANT:            FOR THE APPELLEE:

Douglas A. Trant              John Knox Walkup
Attorney at Law               Attorney General & Reporter
900 S. Gay Street
Suite 1502                    Elizabeth B. Marney
Knoxville, TN 37902           Assistant Attorney General
                              Criminal Justice Division
                              425 Fifth Avenue North
                              Nashville, TN 37243-0493

                              William Paul Phillips
                              District Attorney General
                              P.O. Box 10
                              Huntsville, TN 37756

                              Clifton Sexton, Jr.
                              Michael Ripley
                              Shane Sexton
                              Assistant District Attorneys General
                              P.O. Box 323
                              Jacksboro, TN 37757




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge


                          OPINION
        The appellant, Ronnie Walden, was convicted of felony murder and

sentenced to life imprisonment. The appellant filed a pro se motion for a new

trial, alleging ineffective assistance of counsel. The trial court denied the motion.

The appellant appeals. We affirm the judgment of the trial court.



        In 1992, the appellant was indicted for first degree murder, felony murder,

aggravated kidnaping, and aggravated robbery. The state sought the death

penalty. The facts as established at trial are that the appellant, Michael Ford,

Vivian White, and the victim, Jerry Letner, 1 were riding in the victim’s car in the

early morning hours of January 12, 1992. The appellant, Ford, and the victim

had been drinking alcohol. The victim was drunk. The victim thought that the

appellant was taking him home. White testified that the appellant drove to a pay

phone where Ford made a phone call. The conversation mentioned a “plan.”

The victim said that he needed to relieve himself. The appellant told the victim

to wait a few minutes. Finally, the appellant pulled off of the side of the road.

The victim, the appellant, and Ford went to the back of the car. White testified

that she heard stomping on the gravel and something hit the car. The appellant,

Ford, or both attacked the victim. The victim’s body was placed in the trunk of

the car. The victim’s wallet and approximately $32 were taken.



            Ford, the appellant, and White went to get Ford’s mother’s car. Ford and

White followed the appellant to the victim’s house. White testified that the

appellant and Ford had talked about the victim having a lot of money. She

thought that they went to the victim’s house to get the money. They aborted the

plan because the victim’s neighbors were awake. Ford and White followed the

appellant to a nearby lake or river. The victim was placed in the front seat of his

car. The appellant and/or Ford rolled the car into the water. The appellant,

Ford, and White left, but returned to get the victim’s watch and ring. The


        1
         In the briefs, the parties spell the name Lettner. The transcript spells it Letner, so we adopt
the transcript’s spelling.

                                                   -2-
appellant threw the victim’s wallet and a bloody towel out of the car. Dr. Cleland

Blake, a pathologist, testified that the victim died of a compression injury to the

head that could have been caused by someone stomping on his head.



       At the end of the state’s proof, the appellant’s attorneys, Charlie Allen, Jr.

and Michael Debusk, met with the appellant and several of his family members

to discuss the advantages and disadvantages of calling the appellant and Ford to

testify. Although the appellant disagrees, the trial court found, and the record

reflects, that the appellant decided to follow his attorneys’ advice for him and

Ford not to testify. After the meeting, the defense rested. The appellant had

rejected a plea bargain offer of forty years for aiding and abetting second degree

murder, aggravated robbery, and kidnapping. The jury found the appellant guilty

of felony murder. He was sentenced to life imprisonment. White, a teenager,

testified for the state and provided proof about the victim’s death and the

robbery. Before the appellant’s trial, Ford had pled guilty to second degree

murder, aggravated kidnaping, and aggravated robbery. He received an eighty-

year sentence.



       After appellant’s trial attorneys filed a motion for a new trial, the appellant

filed a pro se motion for new trial based on ineffective assistance of counsel. He

alleged that his attorneys’ failure to call him and Ford as witnesses was

ineffective assistance of counsel. The court appointed counsel to represent the

appellant on both motions for a new trial. After a hearing, the court denied the

motions. The issue before us is whether the evidence preponderates against the

trial court’s findings.



       To be granted relief on the ground of ineffective assistance of counsel, an

appellant must establish that the advice given or the services rendered were not

within the competence demanded of attorneys in criminal cases and that, but for

counsel's deficient performance, the result of his or her trial would have been



                                          -3-
different. Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the

appellant has the burden of showing that there is a reasonable probability, that

but for counsel's error, the result of the proceeding would have been different. In

Tennessee, the appropriate test is whether counsel's performance was within the

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

523 S.W.2d 930, 936 (Tenn. 1975). We give deference to questions about the

credibility of the witnesses, the weight and value to be given their testimony, and

the factual issues raised by the evidence as they are resolved by the trial court.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Furthermore, the

factual findings of the trial court are conclusive on appeal unless the evidence

preponderates against the judgment. Id.



       The court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. Strickland, 466 U.S.

at 689. We should defer to trial strategy or tactical choices if they are informed

ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). Additionally, the court should avoid the distorting effects of

hindsight and judge the reasonableness of counsel's challenged conduct on the

facts of the particular case, viewed as of the time of counsel's conduct.

Strickland, 466 U.S. at 689-90.



       At trial, the theory of the defense was that the appellant did not stomp on

the victim and that the intent to rob was formed after the injuries were inflicted

upon the victim. One of the appellant’s attorneys, Mr. Allen, testified that he

interviewed Ford several times. Ford said that the appellant participated in

beating the victim. These statements were consistent with the statements that

Ford had given to the police. Mr. Allen testified that when he interviewed Ford

shortly before trial, Ford stated that he was the one who stomped on the victim.



                                         -4-
However, Ford continued to implicate the appellant, stating that the appellant

took the victim’s wallet, went to the victim’s house, and that he continued to hit

the victim as he and Ford put him in the trunk. Mr. Allen also testified about his

investigation of the call made by Ford on the morning of the murder. Ford called

Greg Williamson. Mr. Allen interviewed Williamson’s mother who told Mr. Allen

that the phone conversation was that “they” were going to roll this guy and buy

drugs. Ford also denied making threats against the appellant as the appellant

had claimed. Mr. Allen testified that the appellant’s statements throughout the

investigation of the case were also inconsistent and did not coincide with Ford’s

statements. Mr. Allen advised the appellant that his and Ford’s testimony would

do more harm than good. Mr. Allen testified that the defense could not get the

proof in any better situation by calling the appellant and Ford to testify. Mr. Allen

explained that White testified that she did not see who stomped on the victim.

Dr. Cleland testified that it was possible that the victim was struck only once and

that there was only one foot imprint on the victim’s head. The jury was informed

that Ford had pled guilty. The only evidence before the jury as to who struck the

victim was admissions made by the appellant to a law enforcement officer. Mr.

Allen testified that he told the appellant that it was the appellant’s ultimate

decision of whether or not to testify. Mr. Allen testified that the appellant agreed

that he and Ford would not testify.



         The appellant’s second attorney, Mr. Debusk, testified that he became

involved in the case after the state decided to seek the death penalty. He

testified that the appellant told a different story each time he and Mr. Allen

interviewed him. He further testified that the appellant’s testimony at the hearing

on the motion for new trial was inconsistent with his prior statements. He

advised the appellant not to testify and not to call Ford as a witness, as did Mr.

Allen.




                                          -5-
       At the hearing on the motion for new trial, the appellant’s theory was that

his and Ford’s testimony was the only evidence to rebut the state’s proof that the

appellant struck the victim. Ford testified that, if called at the trial, he would have

testified that he knocked the victim to the ground and kicked him because the

victim said something smart. Ford testified that, although he took the victim’s

wallet, there was no plan to rob the victim before the kicking of the victim. Ford

testified, however, that he and the appellant put the victim in the trunk, later

placed the victim in the front seat of the car, and that the appellant drove the

victim’s car into the lake. Ford testified that he and the appellant took towels and

wiped blood and fingerprints off of the victim’s car. Ford admitted that he had

given inconsistent statements to the police, saying that the appellant was

responsible for the victim’s death and later that he, Ford, hit the victim, but that

the appellant kicked the victim.



       The appellant testified that Ford called Greg Williamson’s house from a

pay phone and that he, the appellant, and White drove to Williamson’s driveway

where the victim and Ford got out to relieve themselves. The appellant testified

that he heard a thump, got out of the car, and saw the victim lying on the ground.

The appellant denied kicking the victim, taking his wallet, or driving the car into

the lake. He admitted that he helped Ford put the victim’s body in the trunk and

that he wiped blood off of the car. The appellant testified that he did not take the

wallet, but that he did throw it out the window. He admitted helping Ford place

the victim in the front seat of the car, but denied rolling it into the lake. The

appellant admitted that he first told the police that he did not have anything to do

with the victim. He testified that he could not remember giving a statement

saying that Ford did everything. The appellant denied pointing out the location of

the beating and robbery. He denied telling the police that Ford knocked down

the victim and that he and Ford stomped the victim. He admitted throwing the

towel out of the window. He admitted that he knew that his attorneys had copies




                                          -6-
of all his statements and that his statements were inconsistent with his present

testimony.



        The court found that the appellant failed to establish ineffective assistance

of counsel. The court credited the testimony of the attorneys. He held that the

testimony of the appellant and Ford was less than credible, citing the many

inconsistent statements that they had made. The court held that Mr. Allen and

Mr. Debusk had thoroughly investigated all aspects of the case and had

interviewed all potential witnesses. The court found that their reluctance to call

the appellant and Ford was based on sound reasons, well supported by the

evidence introduced at the hearing. The court said that when tactical decisions

are made by well-prepared attorneys in full consultation with their client and his

family, and the decisions are based on sound reasons and considered judgment,

there is no ineffective assistance of counsel merely because adverse results

occur. The trial court further found that, given the previous statements of the

appellant and Ford and the uncertainty of what they might have said on the

witness stand, the appellant had failed to show any likelihood of a change in the

result of his trial.



        The appellant has failed to show that the evidence preponderates against

the findings of the trial court. The tactical decisions of the appellant’s trial

attorneys were well within the realm of competent representation. White did not

see who stomped on the victim. The jury knew that Ford had pled guilty. The

appellant and Ford had given numerous inconsistent statements to the police

and the appellant’s lawyers. Both could have been impeached if they had

testified. Their testimony at the hearing on the motion for new trial did not

coincide. The appellant maintained that he went along with the crime because

Ford had threatened to kill him and his family. Ford denied making the threats.

The appellant decided not to testify based on his attorneys’ advice. He was not

forced to give up the right, and his attorneys would have put him on the stand



                                          -7-
had he insisted on testifying. The appellant’s attorneys discussed the situation

not only with the appellant but his family members. Finally, White’s testimony at

trial and Ford’s testimony at the hearing on the motion for new trial, clearly

implicated the appellant in the criminal episode. There is not a reasonable

probability that the outcome of the trial would have been different if the appellant

and Ford had testified.



       The trial court treated the appellant’s motion for new trial as a motion for

post-conviction relief. The motion should have been considered an amendment

or supplement to the appellant’s prior motion for a new trial. The trial court

addressed both motions for new trial together. Therefore, the judgment on the

appellant’s conviction had not yet become final when he filed his pro se motion

for a new trial. Defendants may only file one motion for post-conviction relief. If

a post-conviction attack is filed in the future, the issue addressed in this opinion

will have been previously determined.



       The judgment of the trial court is AFFIRMED.




                                               __________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




__________________________
JERRY L. SMITH, Judge




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__________________________
CURWOOD W ITT, Judge




                             -9-
