         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 17, 2001 Session

               KING DAVID JOHNSON v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Maury County
                            No. 7838    Jim T. Hamilton, Judge


                  No. M2000-02756-CCA-R3-PC - Filed September 20, 2001


The petitioner, King David Johnson, appeals the trial court's denial of his petition for post-conviction
relief. The issue presented for review is whether the petitioner was denied the effective assistance
of counsel at trial. The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, King David Johnson.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; and Robert C. Sanders, Assistant District Attorney General, for the appellee, State of
Tennessee.


                                              OPINION

        On February 27, 1996, the petitioner was convicted of second degree murder, a Class A
felony. See Tenn. Code Ann. § 39-13-210. The trial court imposed a Range I sentence of 20 years.
On appeal, this court affirmed the conviction but remanded to the trial court for resentencing. State
v. King David Johnson, No. 01C01-9610-CC-00430 (Tenn. Crim. App., at Nashville, Oct. 24, 1997).
Permission to appeal to our supreme court was denied on June 29, 1998. On a second appeal after
resentencing by the trial court, this court modified the petitioner’s sentence to 17 years due to the
misapplication of three enhancement factors.              State v. King David Johnson, No.
01C01-9808-CC-00329 (Tenn. Crim. App., at Nashville, April 22, 1999). There was no application
for permission to appeal to our supreme court.

         The conviction was based upon the death of the petitioner's girlfriend, Valerie Duke, who
died as a result of a gunshot to the forehead. Rhonda Alexander, a witness for the state at trial,
testified that on the day before the shooting, she overheard the petitioner threaten the victim at her
place of employment and observed him throw a soft drink on her. The petitioner acknowledged that
he had been at the victim's residence the night of the shooting after receiving a telephone call from
the victim, who expressed concern that a window in her house would not close. The petitioner
testified that he got dressed, armed himself with a Glock nine-millimeter semi-automatic pistol, and
traveled to the victim's residence. Explaining that he took the pistol because he was fearful for his
own safety while driving back roads, the petitioner claimed that he loaded the gun just prior to
entering the victim's residence. He testified that after he checked the window, he took his gun from
his waistband and walked into the bathroom. The petitioner claimed that when he returned, the
victim was sitting on the side of a lower bunk bed with the gun in her hand. His defense at trial was
that the shooting was accidental. He contended that the victim was holding the gun by its barrel and
that when he grabbed for the weapon, it discharged into her head. By the time the police arrived at
the scene, the pistol had been tucked underneath the victim's pillow. Investigators found no traces
of gunshot residue on the hands of the victim or the petitioner and found no fingerprints on the
weapon.

        In this petition for post-conviction relief, the petitioner alleged that his trial counsel was
ineffective for failing to adequately prepare the case for trial; failing to timely object to inadmissible
testimony; failing to call favorable witnesses; and failing to adequately prepare him to testify at his
sentencing hearing.

         At the evidentiary hearing, the petitioner testified that he saw his trial counsel only three
times before trial. He claimed that he first met with trial counsel for approximately 30 minutes at
the time that he retained him. The petitioner testified that he met with counsel a second time before
Christmas of 1995 when he learned that the trial might begin the following week. The petitioner
recalled that he met with his counsel on the third occasion only a few days before trial; at that time,
the two discussed jury selection and character witnesses. The petitioner complained that because
his trial counsel never rehearsed his testimony, he was unprepared to testify. He testified that he and
his trial counsel never communicated after the sentencing hearing. The petitioner claimed that phone
records demonstrated that one of the state's witnesses was mistaken or untruthful, but that trial
counsel never raised the issue. On cross-examination, the petitioner acknowledged that he never
complained to his counsel about the lack of preparation and never considered dismissing him or
hiring another lawyer. Other than the petitioner, there were no other witnesses at the evidentiary
hearing.

        At the conclusion of the proceeding, the trial judge, who presided at trial, ruled that the
petitioner received the effective assistance of counsel. He observed that the evidence could have
easily supported a conviction for first degree murder and concluded that trial counsel had exhibited
unusual skill by persuading the jury to return with a lesser verdict of second degree murder.

         In a post-conviction proceeding, the petitioner has the burden of proving factual allegations
by clear and convincing evidence. Tenn. Code Ann. § 40- 30-210(f). The findings of fact made by
the trial court are conclusive on appeal unless the petitioner is able to establish that the evidence



                                                   -2-
preponderates against those findings. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978);
Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given was below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a
sound, but unsuccessful, tactical decision made during the course of proceedings. Adkins v. State,
911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

         In our view, the evidence here does not preponderate against the findings of the trial court.
The petitioner acknowledged that his trial counsel discussed a jury selection strategy and addressed
the value of using character witnesses. More importantly, the petitioner was unable to suggest any
particular way that trial counsel could have better prepared him to testify. The results of the trial
were favorable to the defense in consideration of the testimony presented at trial. Of further note,
the petitioner has been unable to establish how more preparation for either his trial testimony or that
at his sentencing hearing could have altered the outcome of the case. In our view, the petitioner has
failed to establish how any of the alleged deficiencies adversely affected the verdict.

       Accordingly, the judgment is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




                                                 -3-
