         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON
                                                FILED
                       AUGUST 1997 SESSION
                                                  March 13, 1998

                                                Cecil Crowson, Jr.
SYLVESTER L. FARMER,            )               Appellate C ourt Clerk
                                )    NO. 02C01-9602-CR-00067
      Appellant,                )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. JOHN P. COLTON, JR.,
STATE OF TENNESSEE,             )    JUDGE
                                )
      Appellee.                 )    (Post-Conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:

JOSEPH S. OZMENT                     JOHN KNOX WALKUP
217 Exchange Avenue                  Attorney General and Reporter
Memphis, Tennessee 38105
                                     CLINTON J. MORGAN
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     LORRAINE CRAIG
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, Tennessee 38103




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                      OPINION



       The petitioner, Sylvester Farmer, appeals the order of the trial court

dismissing his petition for post-conviction relief. The petitioner alleged ineffective

assistance of counsel at both the trial and appellate levels. The trial court found

the petitioner did not meet his burden of proof regarding the deficient

performance of either trial or appellate counsel. The judgment of the trial court is

affirmed.



                                           I.



       The petitioner was convicted in November 1990 of second degree murder

of his wife and was sentenced to twenty-five (25) years imprisonment as a

Range I offender. The evidence presented at trial revealed that in the early

morning hours of October 8, 1989, the petitioner had an argument with his wife.

She was walking from their bedroom when the petitioner shot her from behind

with a shotgun. The petitioner fired two more shots into her as she lay on the

floor. The petitioner then shot himself in the head with the shotgun.

       The petitioner subsequently appealed his conviction. The conviction and

sentence were affirmed. State v. Farmer, 841 S.W.2d 837 (Tenn. Crim. App.

1992). Petitioner then filed this post-conviction relief petition.

       At the hearing, the petitioner claimed his trial attorney (1) failed to consult

with him regarding potential witnesses, (2) did not properly investigate his case,

and (3) failed to interview the medical examiner. The petitioner also alleged his

appellate counsel failed to adequately raise and brief the issues.

       The trial court filed an excellent memorandum. The trial court reviewed in

detail the allegations made by the petitioner and concluded the petitioner failed

to prove ineffective assistance of counsel. The petition was dismissed, thereby

leading to this appeal.




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                                           II.



                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 him of a fair trial. Strickland v. Washington, 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 v. State, 789 S.W.2d 898, 899

(Tenn. 1990).

         The test in Tennessee for determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 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 v. Washington,

466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389

(Tenn. Crim. App. 1996).

         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, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354

(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,      S.W.2d       (Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

Crim. App. 1996). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not

this Court. Henley v. State,      S.W.2d at      ; Black v. State, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley v. State,      S.W.2d at      ; Black v. State, 794 S.W.2d at 755.



                                           3
                                  A. Trial Counsel



       The petitioner contends that his trial counsel failed to interview witnesses

necessary to his defense. When a petitioner makes this contention, he should

call these witnesses to testify at the evidentiary hearing. Black v. State, 794

S.W.2d at 757; see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App.

1996). As a general rule, this is the only way the petitioner can establish that (a)

a material witness existed and the witness could have been discovered but for

counsel’s neglect in his investigation of the case, (b) a known witness was not

interviewed, (c) the failure to discover or interview a witness inured to his

prejudice, or (d) the failure to have a known witness present or call the witness to

the stand resulted in the denial of critical evidence which inured to the prejudice

of the petitioner. Black, 794 S.W.2d at 757. Neither the trial court nor this Court

can speculate on what a witness’ testimony might have been if introduced.

Therefore, it is impossible for the petitioner to establish that he was prejudiced

by counsel’s failure to call the witnesses at trial.

       The petitioner also alleges trial counsel failed to conduct a sufficient

investigation. A review of the record shows that not to be the case. Petitioner

discussed his case with counsel on several occasions prior to trial. As the trial

court found, defense counsel subpoenaed and conferred with several witnesses

as requested by the petitioner. Yet, these potential witnesses could provide no

helpful testimony. The petitioner has not shown anything else counsel could

have done to aid petitioner.

       Further, the petitioner makes a bare allegation that trial counsel was

deficient for failing to interview the medical examiner. Trial counsel had a

detailed copy of the examiner’s autopsy report. Unquestionably, the cause of

death was three blasts from a shotgun found next to the victim. The petitioner

offered no grounds on which the medical examiner’s testimony could have been

impeached. He cannot, therefore, prove he was prejudiced by counsel’s

decision not to interview the medical examiner.



                                           4
       The trial court found that petitioner had failed to prove deficient

performance by trial counsel or prejudice as a result of counsel’s representation.

The evidence does not preponderate against these findings.



                              B. Appellate Counsel



       The petitioner alleges his counsel on direct appeal failed to adequately

raise and brief the issues. Specifically, he alleges appellate counsel failed to

consult with trial counsel and himself as to what issues should be presented on

appeal.

       It is counsel’s responsibility to determine the issues to present on appeal.

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This

responsibility addresses itself to the professional judgment and sound discretion

of appellate counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995).

There is no constitutional requirement that every conceivable issue be raised on

appeal. Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The

determination of which issues to raise is a tactical or strategic choice. Id.

       Appellate counsel testified that he felt the only issue with merit to be

raised on appeal was the admission of petitioner’s prior conviction at trial. W hile

this Court found that admission to be error, in the light of overwhelming evidence

of guilt, we found it harmless. State v. Farmer, 841 S.W.2d at 840. The trial

court found petitioner failed to establish deficient performance of appellate

counsel or prejudice as a result of counsel’s representation. The evidence does

not preponderate against these findings.



                                         III.



       The petitioner has failed to meet the burden for showing ineffective

assistance of counsel as mandated by Strickland v. Washington. He has not

shown that counsels’ performance fell below the range of competence


                                          5
demanded in criminal cases. Additionally, he has not demonstrated prejudice.



      The judgment of the trial court is AFFIRMED.




                                             _________________________
                                             JERRY L. SMITH, JUDGE




CONCUR:




___________________________
DAVID G. HAYES, JUDGE




___________________________
THOMAS T. WOODALL, JUDGE




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