         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 22, 2005

           GARY RANDALL YARNELL v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Blount County
                         No. C-11964    D. Kelly Thomas, Jr., Judge



                     No. E2004-01762-CCA-R3-PC Filed August 15, 2005


Gary Randall Yarnell, the petitioner, appeals the Blount County Circuit Court’s denial of his petition
for post-conviction relief. The lower court found his allegations of ineffective assistance of counsel
and unknowing and involuntary guilty pleas unsupported by the evidence and denied relief. Because
we are unpersuaded of error, we affirm.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JERRY L. SMITH , JJ., joined.

Robert M. Cohen, Maryville, Tennessee, for the Appellant, Gary Randall Yarnell.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Rocky Young, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

               In 1998, the petitioner pleaded guilty to first degree murder, especially aggravated
robbery, and especially aggravated burglary. He received concurrent sentences of life imprisonment
with the possibility of parole, 15 years, and 12 years respectively. From the record, we glean that
his convictions stemmed from the 1996 baseball-bat bludgeoning death of Steven Mote. The
victim’s body was stuffed into the trunk of his own vehicle, and that vehicle was driven to a secluded
area of Douglas Lake and set on fire.

               The TVA Police unit on duty at Douglas Lake was dispatched to the scene of the fire.
The record before us contains a TVA Police Uniform Incident Report in which the following details
appear:

               INITIAL OBSERVATIONS OF OFFICER LOVIN:
                On 10/15/96, at approximately 0732 hours, while in route to the fire
                scene, I observed a white male, later identified as [the petitioner],
                walking on Highway 338 in Sevier County near the scene. [The
                petitioner] was dressed in brown or light black dress pants, a buttonup
                shirt, a cap, and brown or black dress shoes. [The petitioner] stated
                that he was going to work, and that he worked at Tennessee Cylinder
                Head, on Chapman Highway, in Knoxville. I ask[ed] where he had
                been. [The petitioner] stated that he had stayed with his brother the
                night before, who he said lived just across the hill, and had gotten up
                early to go meet his girlfriend. [The petitioner] stated that his
                girlfriend was supposed to pick him up. [The petitioner] stated that
                she had not show[n] up, so he decided to walk down the road to see
                if he could find her anywhere. [The petitioner] stated that he was
                going to the Lakeway Market to call his sister and have her come and
                take him to work, if he could not find his girlfriend. Knoxville
                Communications verified that there were no wants or warrants on [the
                petitioner]. After this, I proceeded to the scene of the fire.

                        ....

                After the investigators took over the crime scene, Capt. Majors
                informed me to go back to where I had seen [the petitioner]. I was
                advised to locate[ and] to bring [the petitioner] back to the scene. I
                was unable to locate [the petitioner] in the area of Douglas Dam. I
                proceeded to [the petitioner’s] residence, . . . [and w]hile at the
                residence, I spoke with [the petitioner’s] mother . . . [who] admitted
                that her son had called her this morning, around 0800 hours from the
                Lakeway Market in Sevier County. She advised me that her son told
                her that he had called his sister to come to pick him up and that his
                sister was on her way.

                Eventually, law enforcement officers located the petitioner, and he gave an
inculpatory statement to the police implicating himself and a female companion, Candace McCarter,
in the robbery and murder of the victim. The petitioner admitted to the police that he struck the
victim with a bat, but the petitioner maintained that he did not mean to kill the victim. Based on the
circumstances of the homicide, the state initially sought the death penalty but later agreed to
withdrawn its notice in exchange for the petitioner’s plea.

                Slightly less than one year after entry of his guilty pleas, the petitioner filed a pro se
petition for post-conviction relief. Thereafter, the petition was amended several times, and five
different attorneys were appointed to represent the petitioner, four of whom were permitted to
withdraw. An evidentiary hearing was conducted on May 13 and 14, 2004; the litigated issues were


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ineffective assistance of counsel, involuntary guilty pleas, prosecutorial misconduct, illegal
confession, and lack of culpable mental state.

                At the post-conviction hearing, the petitioner’s lead trial counsel testified about his
appointment to represent the petitioner. Inasmuch as the state was seeking the death penalty, defense
co-counsel was also appointed to work on the case. Lead counsel was asked about the initial stop
of the petitioner on Highway 338, near the fire scene. Trial counsel had not filed a pretrial motion
challenging the stop as illegal, and lead counsel testified that he saw no basis to attack the stop
inasmuch as the encounter took place in a public place and no seizure occurred.

                 Lead counsel had filed a pretrial motion to suppress the statements that the petitioner
gave to law enforcement officers. The motion alleged that the petitioner was first interviewed on
May 15, 1996, and that during the interview he requested that counsel be present during any further
questioning. The petitioner provided the name of his attorney, and because the petitioner could not
reach his attorney, the interview concluded at that time. According to the suppression motion,
approximately three days later, an officer contacted the petitioner directly and requested that the
petitioner go to the Blount County Sheriff’s Department to be photographed and provide fingerprints.
The request, the motion alleged, was a ruse to interview and obtain evidence from the petitioner
without the presence of counsel, and indeed, the petitioner ultimately made inculpatory statements
to the officers without the benefit of counsel. Lead counsel testified that part of the plea agreement
with the state required the defense to withdraw that motion; consequently, the suppression motion
was never litigated.

                Regarding investigation into the petitioner’s culpable mental state, lead counsel
acknowledged that no mental evaluation was performed. He recalled, however, that co-counsel
contacted an expert on the effects of marijuana and other intoxicants to explore a possible defense.
The facts, however, appeared to show considerable deliberation and activity, including clubbing the
victim, stealing his property, loading up the victim’s car and placing the victim’s body in the trunk,
driving to another county, and setting the car on fire. As a result, lead counsel was not convinced
that voluntary intoxication was a viable defense. Likewise, lead counsel did not believe that it was
possible to successfully argue criminally negligent homicide to a jury. Even so, lead counsel
specifically recalled discussing lesser included offenses with the petitioner, although counsel was
not encouraging about the prospect of a lesser included offense conviction.

               Lead counsel was shown a copy of an undated statement handwritten by a female who
was an inmate at the Blount County Jail at the same time the petitioner’s female co-defendant was
detained. The writer reports that on September 1, 1997 – before the petitioner pleaded guilty – co-
defendant, Candace McCarter, made sexual advances toward the writer, assaulted the writer, and
admitted holding the baseball bat and killing the victim. Lead counsel could not recall ever receiving
that exculpatory statement from the state. Had counsel been aware of the statement, counsel said
that he would have discussed it with the petitioner and could have used it to impeach the co-
defendant had she testified.



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               The state’s death penalty notice had cited three aggravating circumstances: that the
murder was especially heinous, atrocious, or cruel; that the murder was knowingly committed during
the perpetration of enumerated felonies; and the body of the victim was knowingly mutilated after
death. Lead counsel testified that he had not filed any motions attacking the aggravating factors as
unconstitutionally vague.

                 The petitioner, who was 23-years old when the victim was killed, testified about being
stopped by the TVA officer as he was walking down the road near Douglas Dam. The officer drove
past the petitioner but then turned around and stopped where the petitioner was standing. According
to the petitioner, the officer “got out of the vehicle and patted [him] down and asked for [his] I.D.”
The petitioner did not have a driver’s license, but he supplied his name and address. The officer
“phoned” in the information and asked where the petitioner had been. The petitioner told the officer
that he had spent the night at his brother’s house and was walking to Lakeway Market. The officer
told the petitioner to stay where he was until the information was checked. The petitioner estimated
that the officer detained him “about five minutes.”

                The petitioner’s next contact with law enforcement was later that night when several
officers came to his mother’s house and questioned him about Candace McCarter. At the officers’
request, the petitioner drove to the TBI office to discuss the matter further. The petitioner said that
at a certain point, he told the officers he was uncomfortable and wanted his attorney present. The
petitioner was unable to reach his attorney that evening, and he left the TBI office with the agreement
that he would contact the officers after he had spoken with his attorney. The following day, the
petitioner learned that his attorney was out of town and would not return for several days. The
petitioner then called one of the officers to advise that his attorney was out of town but that the
petitioner would ask the attorney to call the officers when he returned.

                 Two days later, one of the investigators first contacted the petitioner’s mother and
later the petitioner to ask that he provide his fingerprints and be photographed. The petitioner was
at work and told the investigator that he had no transportation, whereupon the investigator arranged
for transportation. During that meeting, the petitioner gave a statement to one of the investigators.
The petitioner agreed that counsel had filed a motion to suppress that statement.

                The petitioner testified that he and counsel had several discussions about pleading
guilty to avoid the death penalty. The petitioner rejected the idea of pleading and agreeing to a
sentence of life without the possibility of parole. When, however, an offer was made involving a
sentence of life with the possibility of parole, the petitioner, the petitioner’s family members, and
counsel met to discuss the offer. The petitioner said that he asked counsel about lesser included
offenses to which counsel responded that “there is no need to worry about a lesser-included offense
because there is no way we can keep you from death row.” Counsel showed the family members
photographs of the victim and the crime scene. The petitioner said that the pictures profoundly
affected his family. In addition, counsel told the petitioner that the co-defendant McCarter was
considering a plea offer involving testifying against the petitioner.



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                 At the time of the plea discussions, the petitioner had been in pretrial confinement
for almost two years. He testified that he had become depressed and had suicidal thoughts. The
petitioner claimed that when he mentioned a psychological evaluation, counsel resisted the idea on
the basis that the petitioner was “competent.” Because of his depression, the petitioner said that his
plea was not knowing or voluntary. Furthermore, he maintained that counsel never discussed or
explained to him the requirements that first degree murder be intentional and premeditated. As for
witnesses who may have heard the co-defendant admit to killing the victim, the petitioner said that
counsel never advised him of such individuals.

               The final post-conviction witness was Detective James Widener, who participated
in the homicide investigation. He described the murder scene and the area of Douglas Lake where
the vehicle was set on fire. He also was asked about the evidence in the case and about the
inculpatory statement the petitioner had given to the officer.

                From the evidence and testimony presented, the post-conviction court made the
following findings: (1) Trial counsel were not ineffective for failing to challenge the officer’s stop
of the petitioner in the vicinity of the fire inasmuch as no legal basis existed to contest the brief
investigatory stop; (2) the state’s failure to disclose exculpatory evidence regarding the statement of
the inmate to whom co-defendant McCarter had confessed to the homicide did not adversely impact
the outcome of the trial; (3) had the motion to suppress the petitioner’s statement been pursued, it
would not have been successful because the statement was voluntarily made after the petitioner had
initiated a conversation with law enforcement; (4) the petitioner failed to demonstrate that he was
suffering from any mental or cognitive problems that undermined the voluntariness of his guilty plea;
(5) the evidence refutes the petitioner’s claim that drug and alcohol use and depression rendered him
incapable of intentional, premeditated homicide; and (6) the threat of receiving the death penalty
would not have abated even had one of the statutory aggravators been successfully challenged.
Accordingly, the post-conviction court dismissed the petition.

                In post-conviction proceedings, the petitioner has the burden of proving by clear and
convincing evidence the claims raised. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the
lower court’s findings of fact are reviewed de novo with a presumption of correctness that may only
be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below
the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d
213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient
representation, the outcome of the proceedings would have been different. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counsel resulted in
a guilty plea, the burden is upon the defendant to establish the prejudice prong of Strickland by


                                                  5
proving that “there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.
Ct. 366, 370 (1985). On review, there is a strong presumption of satisfactory representation. Barr
v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). If prejudice is absent, there is no need to
examine allegations of deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

                 Two of the petitioner’s complaints relate to pretrial motions that he insists should
have been filed and/or litigated before a plea agreement was reached. First, the petitioner assails trial
counsel’s performance in not raising the legality of the investigatory stop by Officer Lovin; second,
the petitioner argues that trial counsel was ineffective in failing to pursue the motion, which had been
filed, to suppress the petitioner’s incriminating statements to law enforcement. To prevail on either
or both of these ineffective-assistance complaints, the petitioner must demonstrate that the motions
were meritorious. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986)
(where failure to litigate suppression is basis of ineffectiveness claim, defendant must also prove
suppression motion is meritorious).

               We review de novo the post-conviction court’s legal conclusion that no basis in the
law existed to challenge Officer Lovin’s stop. See Fields, 40 S.W.3d at 458. The petitioner, we
note, seemingly frames the issue in terms of whether a “seizure” occurred when he was stopped.
However, even if the petitioner was constitutionally “seized,” the matter does not end. He must
further demonstrate prejudice in the post-conviction context by proving that the “seizure” was
unreasonable.

                When a police officer’s interaction with a citizen impermissibly intrudes upon the
privacy or personal security of the citizen, it violates the Fourth Amendment to the United States
Constitution and Article 1, section 7 of the Tennessee Constitution. Not every encounter between
police officers and citizens is a “seizure,” however. State v. Randolph, 74 S.W.3d 330, 338 (Tenn.
2002). A seizure occurs only when an officer restrains the liberty of an individual by means of
physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16
(1968). The courts have recognized three distinct types of police-citizen interactions: (1) a full scale
arrest supported by probable cause; (2) a brief investigatory detention supported by reasonable
suspicion; and (3) a brief police-citizen encounter, which requires no objective justification. State
v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000).

                A law enforcement officer does not violate the Fourth Amendment by merely
approaching a person in a public place and posing a question. United States v. Drayton, 536 U.S.
194, 200, 122 S. Ct. 2105, 2110 (2002). Even if an officer has no basis for suspecting a crime is
being committed, he or she may pose questions or ask for identification, provided he or she does not
induce cooperation by coercive means. Id., 122 S. Ct. at 2110; see Daniel, 12 S.W.3d at 425. To
determine if an interaction between an officer and an individual is a seizure or a consensual
encounter, the court must consider all the surrounding circumstances and ascertain whether the
“police conduct would have communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S.


                                                   6
429, 439, 111 S. Ct. 2382, 2389 (1991).

                In this case, from Officer Lovin’s account of the encounter, we discern that he
stopped the petitioner in a public place on Highway 338 near the fire scene, inquired where the
petitioner had been and where he was going, obtained personal identification information from the
petitioner, checked the information, and then proceeded to the scene of the vehicle fire. According
to the petitioner’s testimony, the encounter lasted “about five minutes,” during which time he was
“patted down,” asked for identification, asked where he had been and where he was going, and was
told to “stay” until the information was verified.

                In our opinion, it is unnecessary to engage in a protracted analysis whether the
encounter constituted a brief investigatory detention or a brief police-citizen interaction. Even
viewed as a brief investigatory detention, Officer Lovin acted reasonably. Officer Lovin encountered
the petitioner in the vicinity of the vehicle fire. The petitioner was wearing “dress pants,” a
“buttonup shirt,” and “dress shoes,” and he claimed to be headed to work at Tennessee Cylinder
Head on Chapman Highway. Under the circumstances, Officer Lovin acted reasonably in asking for
identification and detaining the petitioner no longer than necessary to verify the information. See
State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (detention of the person must last no longer than
necessary to effectuate the purpose of the stop). Moreover, it plainly appears that Officer Lovin
employed the least intrusive means reasonably available to investigate his suspicions in a short
period of time, after which the detention promptly terminated. See Florida v. Royer, 460 U.S. 491,
500, 103 S. Ct. 1319, 1325-26 (1983). Consequently, we agree with the post-conviction court that
Officer Lovin’s stop of the petitioner could not have been successfully challenged had a suppression
motion been filed; therefore, the petitioner failed to sustain his claim of ineffective assistance of
counsel on this basis.

                Finally, on this claim we are at a loss to discern how a successful suppression motion
would have benefitted the petitioner. No evidence was discovered or seized from the petitioner
during his encounter with Officer Lovin. The petitioner’s incriminating statements were not made
until several days after the encounter with Officer Lovin; the intervening events would have purged
or attenuated any illegal detention. See State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). As for
Officer Lovin learning the petitioner’s identity, the record shows that other investigative efforts
underway would inevitably have led law enforcement to the petitioner via the co-defendant
McCarter. See Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984).

                Regarding the motion that was filed to suppress the petitioner’s incriminating
statements, the petitioner, likewise, has not shown that trial counsel was ineffective in failing to
pursue the motion. First, the petitioner has not demonstrated that counsel’s actions were objectively
unreasonable – that is, outside the range of competence demanded of attorneys in criminal cases.
Lead counsel testified that the plea agreement required that the suppression motion be abandoned
in exchange for the state withdrawing its request for the death penalty. Trial counsel’s concerns that
the state would likely obtain the death penalty if the case proceeded to trial were obviously valid, and
the state could properly insist on withdrawal of the suppression motion as a condition of avoiding


                                                   7
the death penalty.

                Second, the petitioner has not demonstrated that he would have prevailed on the
suppression motion. The post-conviction court found that “[t]he facts in the present case establish
that [the petitioner], not Officer Widener[,] initiated the discourse and that Widener told [the
petitioner] of his right to have his lawyer present.” That finding, which is entitled to a presumption
of correctness, see Fields, 40 S.W.3d at 450, satisfies the legal requirement that once a suspect
makes an unequivocal request to deal with the police only through counsel, the subject may not be
further interrogated until counsel has been made available, unless the suspect “initiates further
communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
485, 101 S. Ct. 1880, 1885 (1981).

                The petitioner’s assault on counsel’s effectiveness in failing to challenge the
“especially heinous, atrocious, or cruel” death penalty aggravating factor gains no momentum on
appeal. As the post-conviction court noted, eliminating one of the state’s noticed aggravating
sentencing factors would not have removed the threat that the petitioner could receive the death
penalty. Prejudice, therefore, has not been shown. Furthermore, we are not convinced that a
constitutional vagueness challenge to Tennessee’s current or former version of the “heinous,
atrocious, or cruel” aggravating circumstance would necessarily succeed. See Bell v. Cone, ___ U.S.
___, ___, 125 S. Ct. 847, 854-55 (2005) (narrowing construction of the aggravator that Tennessee
Supreme Court applied in State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), was not unconstitutionally
vague).

                The petitioner’s argument that his guilty pleas were not knowingly, voluntarily, or
intelligently entered, likewise, fails. Certainly, due process demands that a guilty plea be entered
voluntarily, knowingly, and understandingly. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.
Ct. 1709, 1711-13 (1969). A plea is involuntary if the accused is incompetent or “only if it is the
product of ‘ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at
242-43, 89 S. Ct. at 1712). A defendant’s testimony at a plea hearing that his or her plea is voluntary
is a “formidable barrier in any subsequent collateral proceedings” because “[s]olemn declarations
in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.
Ct. 1621, 1629 (1977).

                Nothing in the transcript of the petitioner’s plea submissions suggests that he was
incapable of rationally weighing the advantages of pleading guilty versus proceeding to trial. In
addition, other than the petitioner’s self-serving testimony regarding his depression, he offered no
independent corroboration that he was incapable of making a rational decision.1 The post-conviction

         1

        To the extent that the petitioner is also claiming that trial counsel were ineffective in failing to obtain a
psychological evaluation or to recruit expert testimony to negate premeditation, the petitioner has failed to demonstrate
what a psychological evaluation or expert testimony would have uncovered, and he has not demonstrated that a
reasonable probability exists that, “but for counsel’s errors, he would not have pleaded guilty and would have insisted

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court accepted, as reasonable, the petitioner’s claim that he was depressed, but it correctly assessed
that claim as inadequate, without more, to prove that his guilty pleas were involuntary. We agree.

                The last matter concerns the state’s failure to provide to the petitioner the exculpatory
evidence that co-defendant McCarter had confessed to killing the victim. The post-conviction court
found that the state had withheld exculpatory evidence but that the outcome of the proceeding was
not affected.

                In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the Supreme Court held
that “suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; see also Hartman v.
State, 896 S.W.2d 94, 101 (Tenn. 1995). In order to establish a due process violation under Brady,
four prerequisites must be met: (1) the defendant must have requested the information (unless the
evidence is obviously exculpatory, in which case the state is bound to release the information,
whether requested or not); (2) the state must have suppressed the information; (3) the information
must have been favorable to the accused; and (4) the information must have been material. State v.
Edgin, 902 S.W.2d 387, 389 (Tenn. 1995).

                The burden of proving a Brady violation rests with the defendant, and the violation
must be proven by a preponderance of the evidence. Id. When determining the materiality of
undisclosed information, a reviewing court must assess whether “in [the] absence [of the
information, the defendant] received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1556 (1995). In other words,
evidence is considered material only if there is a reasonable probability that had the evidence been
disclosed to the defense, the results of the proceeding would have been different. Edgin, 902 S.W.2d
at 390-91.

                 We agree with the post-conviction court’s assessment that the evidence does not
satisfy the materiality prong of Brady. The petitioner has failed to show how the statement would
have led to a reasonable probability that either he would not have pleaded guilty or that he would
have obtained a more favorable plea agreement. The state’s theory that both the petitioner and
McCarter were intimately involved in the homicide was no secret, and both subjects had criminal
responsibility for the victim’s death. Accordingly, we conclude that the petitioner is entitled to no
relief on this ground.

               For the foregoing reasons, we conclude that none of the petitioner’s claims merits
relief. Accordingly, the judgment of the post-conviction court is affirmed.




on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966 S.W .2d 54, 55 (Tenn. Crim. App.
1997).

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     ____________________________________
     JAMES CURWOOD WITT, JR., JUDGE




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