        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                           AT KNOXVILLE                       June 7, 1999

                                                            Cecil Crowson, Jr.
                     DECEMB ER SESSION, 1998                Appellate C ourt
                                                                Clerk



JOHNNY CARL WEAVER,        )   C.C.A. NO. 03C01-9801-CR-00041
                           )
      Appe llant,          )
                           )
                           )   KNOX COUNTY
VS.                        )
                           )   HON. RICHARD R. BAUMGARTNER
STATE OF TENNESSEE,        )   JUDGE
                           )
      Appellee.            )   (Post-Co nviction Re lief)




FOR THE APPELLANT:             FOR THE APPELLEE:

LESLIE M. JEFFRESS             JOHN KNOX WALKUP
P. O. Box 2664                 Attorney General and Reporter
Knoxville, TN 37902-2664
                               TODD R. KELLEY
                               Assistant Attorney General
                               425 Fifth Avenu e, North
                               Nashville, TN 37243

                               RANDALL E. NICHOLS
                               District Attorney General

                               ANDREW JACKSON, VI
                               Assistant Attorney General
                               400 Main Avenue
                               Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       On August 21, 1987, a Knox County jury convicted Appellant Johnny

Carl Weaver of third degree burglary, grand larceny, and being a habitual

criminal. O n Nove mber 1 0, 1987 , the trial court s entenc ed App ellant to life

imprisonm ent in the Ten nessee D epartmen t of Correction. Th is Court

subsequently affirmed Appellant’s convictions and sentence on December 8,

1988. Appellant filed a petition for post-conviction relief on October 25, 1991,

and a n am ende d petitio n on M arch 2 5, 199 4. The post-c onvictio n cou rt held

an evidentiary hearing on the petition on September 15, 1994, and dismissed

the pe tition on Janu ary 12 , 1998 . Appe llant ch alleng es the dism issal of h is

petition, raising the following issues:

       1) whether Appellant’s trial counsel was ineffective in failing to take
       action to preserve an audio tape that might have contained exc ulpatory
       evidence;
       2) whether Appellant’s trial counsel was ineffective in failing to file a
       motion asking the trial court to prohibit the State from directing
       witnesses not to talk about the case without prior approval by the
       prosecutor; and
       3) wheth er App ellant’s trial cou nsel wa s ineffective in failing to ob ject to
       the trial court’s statement at the close of the first day of deliberations
       that the jury should return the next day and deliberate further and “then
       give us a re port one way or the other.”

After a review of the record, we affirm the post-conviction court’s dismissal of

the petition.



                                       I. FACTS




       The record indicates that on May 8, 1986, Doane’s Market in Knoxville,

Tennessee was being monitored by Sonitrol Security Company to the extent



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that sound from inside the market was audible at Sonitrol’s monitoring

location. Rebecca Lenear, the Sonitrol employee who was monitoring the

security system on that date, heard some glass breaking at 2:22 a.m. Lenear

then called the police and the owner of the market to report what she had

heard. At 2:25 a.m., Lenear called the police again to report that at least two

people were in the marke t.



       Shortly thereafter, Officer Steve Griffin of the Knoxville Police

Department arrived at the market and saw Appellant come out of the market

with some cigarettes and saw another individual walking away from the

mark et. App ellant th en dro pped the cig arettes and ra n. Offic er Griffin

pursued A ppellant and fou nd him hiding under a car.



       A subsequent inspection revealed that the door of the market had been

battered to allow for entry. The police also discovered that some food stamps

had be en take n and th at severa l items ha d been stacked outside th e mark et.



                                      II. ANALYS IS




       Article I, S ection 9 of the Ten ness ee Co nstitutio n prov ides “th at in all

criminal prosecutions, the accused hath the right to be heard by himself and

his counsel.” Tenn. Const. art I, § 9. Similarly, the Sixth Amendment to the

United States Constitution guarantees that “[i]n all criminal prosecutions, the

accu sed s hall en joy the rig ht . . . to ha ve the a ssista nce o f coun sel for h is

defens e.” U.S. C onst. am end. VI. “T hese c onstitution al provision s afford to




                                             -3-
the accused in a criminal prosecution the right to effective assistance of

counsel.” Henley v. State, 960 S.W .2d 572 , 579 (T enn. 19 97).



      Wh en a petitioner se eks post-con viction relief on the basis of ine ffective

assistance of counsel, he or she must first establish that the services rendered

or the advice given was below “the range of competence demanded of

attorneys in crimina l cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Second, he or she must show that the deficiencies “actually had an

adverse effect o n the defens e.” Strickland v. Washington, 466 U.S. 668, 693,

104 S.Ct. 2052, 2067–68, 80 L.Ed.2d 674 (1984). “Because a petitioner must

establish both prongs of the test to prevail on a claim of ineffective assistance

of counsel, failure to prove either deficient performance or resulting prejudice

provides a sufficient b asis to deny relief on the claim.” Henley, 960 S.W.2d at

580. “Indeed, a court need not address the components in any particular

order or even address both if the defendant makes an insufficient showing of

one com ponent.” Id. “Moreover, on appeal, the findings of fact made by the

trial court are conclusive and will not be disturbed unless the evidence

contained in the record prepo nderates ag ainst them.” Adkins v. State, 911

S.W .2d 334 , 347 (T enn. C rim. App . 1994). “T he burd en is on th e petitione r to

show that the e vidence prep onderated against those findings.” Id.



                                   A. Audio Tape




      Appe llant first conte nds tha t his trial coun sel was in effective in failing to

take action to preserve an audio tape of the break-in at the market that might

have contained exculpatory evidence. Specifically, Appellant argues that

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because he has maintained all along that he did not break into the market, but

merely entered the market after it had already been broken into, an audio tape

of the break-in might have contained evidence that would have exonerated

him as the pers on who broke into the ma rket.



       In its order denying Appellant’s petition, the post-conviction court found

that the only vo ice Le near h eard o n the n ight of th e brea k-in wa s som eone yell

“Take that.” The post-conviction court also found that because Lenear

testified at trial that she was unsure whether the incident at the market had

been re corded , it was not cle ar that an y audio ta pe of the e vent ever e xisted.

The post-conviction court also found that because Lenear testified that if the

incident had been recorded, it would not have been recorded until after the

glass had b roken , the on ly thing o n an a udio ta pe wo uld ha ve bee n the s ingle

verba l statem ent “T ake th at.” Th us, the lower c ourt fou nd tha t if the au dio

tape had e ver existed, it would not ha ve contained anything that wo uld have

been h elpful to Ap pellant.



       In this case, the evidence simply does not preponderate against the

post-conviction court’s findings of fact. Indeed, Appellant concedes in his brief

that the alleged audio tape may have never existed. Further, Appellant also

concedes that there is no evidence that the alleged tape would have contained

any excu lpatory m aterial. Ra ther, App ellant claim s only that it m ight have .

Beca use A ppella nt has obviou sly failed to dem onstra te that h is coun sel’s

alleged deficiency in failing to secure the alleged tape “actually had an

adver se effe ct on th e defe nse,” th e pos t-conv iction co urt was correc t in




                                           -5-
determ ining that A ppellant w as not en titled to relief on this basis. See Henley,

960 S.W .2d at 580 . This issu e has n o merit.



                                    B. Witnesses




       Appe llant also co ntends that his trial co unsel w as ineffec tive in failing to

file a motion asking the trial court to prohibit the State from directing witnesses

not to talk a bout the case w ithout prior a pproval b y the pros ecutor.



       The record indicates that shortly before trial, Appellant’s trial counsel

informe d the trial cou rt that two of th e State’s witness h ad dec lined to talk to

him and stated that they would have to clear it with the district attorney’s office

first. Th e trial co urt then stated that it wo uld ha ve a rec ess so that Ap pellan t’s

trial counsel could talk to both of the witnesses before they testified. At the

post-conviction hearing, Appellant stipulated that, if called, the prosecutor

would testify that he merely told the witnesses “that they had the right to talk or

not to talk to the defen se attorney as it is their wish.”



       The post-c onvictio n cou rt found that alth ough the witn esse s had initially

declined to talk to Appellant’s trial counsel, trial counsel did have the

opportu nity to talk to bo th witness es befo re they tes tified. Thus , the post-

conviction court concluded that Appellant had not been prejudiced by the fact

that trial counsel’s initial efforts to interview the witnesses had been

unsuc cessful.




                                           -6-
       Althou gh Ap pellan t main tains th at his tria l coun sel wa s defic ient in

failing to take a ction th at ma y have induc ed the witnes ses to talk to h im

sooner, Appellant has failed to indicate how he was prejudiced by this alleged

deficienc y. Indeed , assum ing that the witnesse s would have ag reed to ta lk to

Appellant’s trial counsel if he had taken the desired action, Appellant has

failed to indicate what his counsel could or would have done differently than

he did after inte rviewin g the w itness es sh ortly be fore tria l. In fact, A ppella nt’s

only co mpla int is tha t by hav ing to in terview the witn esse s right b efore tr ial, his

trial counsel did not have “a more leisurely interview . . . when trial pressures

are not s o great.” T his allega tion is simp ly insufficient to establish prejudice .

Because Appellant has failed to demonstrate that his counsel’s alleged

deficiency in failing to ask the trial court to prohibit the State from directing

witnesses not to talk about the case without prior approval “actually had an

adver se effe ct on th e defe nse,” th e pos t-conv iction co urt was correc t when it

determ ined that A ppellant w as not en titled to relief on this basis. See Henley,

960 S.W .2d at 580 . This issu e has n o merit.



                              C. Instruction to the Jury




       Appellant further contends that his trial counsel was ineffective in failing

to object to a statement that the trial court made to the jury at the close of the

first day of deliberations.



       The record indicates that at the end of the first day of jury deliberations,

the following colloquy occurred:




                                            -7-
             THE COUR T: All right. Mr. Tharpe, I understand that you are the
      forem an of th is jury, an d I und erstan d, sir, tha t the jury has b een u nable
      to reach a verdict at th is point; is tha t correct?
             THE F OREM AN: Tha t’s right, sir.
             THE COUR T: All right. I am going to ask that—we will go ahead
      and break , because yo u have bee n at this for a long time here
      yesterda y and tod ay both. I am going to a sk that you come back at 9
      o’clock in the morning and deliberate a little further on the case, and
      then give us a re port one wa y or the other.
             THE FOR EMA N: Tha nk you, sir.

Shortly afte r the jury retired , the trial court m ade the following c omm ent:

              THE COUR T: The foreman, Mr. Tharpe, reported to Mr. Keys, the
       court officer, that the jury has been unable to reach a verdict. And he
       further stated that he feels that they are going to be unable to reach a
       verdict in this case. Ho wever, I have no t chosen to ch arge them further,
       but I have asked them to come back and deliberate again in the
       morning. I am sure that they will not come back real soon. . . . If they do
       report to me again in the morning that they still are unable to reach a
       verdict, then I am not going to insist that they deliberate further, after
       they have ha d all night to think abou t it and all that. I will just declare
       the jury to be hung a t that time.

The next morning, the jury deliberated from 9:00 a.m. to 11:54 a.m., at which

time the ju ry returned with the ver dict.



       The post-conviction court found that the trial court’s decision to recess

at 6:00 p.m . after three h ours of d eliberation s was e ntirely appr opriate. In

addition, the post-conviction court found that the trial court’s direction to the

jury to deliberate further the next morning and then report its decision “one

way or the other” did n othing to im properly in fluence th e jury in its

deliberatio ns.



       Appellant cites Kersey v. State, 525 S.W.2d 139 (Tenn. 1975), for the

proposition that his trial counsel was ineffective in failing to object to the trial

court’s statement that the jury should deliberate further “and then give us a

report one way or the other.” Specifically, Appellant contends that the trial

                                             -8-
court’s comm ent amou nted to the kind o f “dynamite” or Allen charge that was

condemned by the Tennessee Supreme Court in Kersey, 525 S.W .2d at 144 .

The “dyna mite” or Allen charge was taken from Allen v. United States, 164

U.S. 492, 50 1, 17 S.Ct. 154 , 157, 41 L.Ed . 528 (1896):

       [T]hat although the verdict mus t be the verdict of eac h individual juror,
       and not a mere acquiescence in the conclusion of his fellows, yet they
       should examine the question submitted with candor and with a proper
       regar d and defere nce to the op inions of eac h othe r; that it wa s their
       duty to decide the case if they could conscientiously do so; that they
       shou ld listen , with a d ispos ition to b e con vinced , to eac h othe r's
       argum ents; that, if m uch the larger nu mber w ere for co nviction, a
       disse nting ju ror sho uld co nside r wheth er his d oubt w as a re ason able
       one which made no impression upon the minds of so many men,
       equally honest, equally intelligent with himself. If, upon the other hand,
       the majority was for acquittal, the minority ought to ask themselves
       whether they might not reasonably doubt the correctness of a judgment
       which w as not co ncurred in by the m ajority . . . .

The Ten ness ee Su prem e Cou rt found this type of instru ction im perm issible

because it invades the province of the jury and dilutes the requirement of

unanimity by embarrassing and coercing a juror into surrendering views that

are con scientiou sly entertain ed. Kersey, 525 S.W .2d at 144 .



       We conclude that the trial court’s comment in this case is simply not the

type of “dynam ite” or Allen charge that was condemned in Kersey. Instead,

the trial c ourt’s c omm ent is sim ilar to the instruc tions u pheld by this C ourt in

State v. Baxter, 938 S.W.2d 697 (Tenn. Crim. App. 1996), and State v. Dick,

872 S.W.2d 938 (Tenn. Crim. App. 1993). In Baxter, this Court held that a trial

court did not err when it gave the following instruction to a jury that had

reported that it had b een un able to ag ree on a verdict:

       You’ve actually deliberated a relatively short period of time. That’s less
       than three hours. I’m not—don’t know how long I’m going to have you
       deliberate. It could go to tomorrow. At any event, I’m going to have you
       continue to deliberate. I’d ask that—this is an important case. A lot of
       time a nd effo rt has b een p ut into th e cas e. I wou ld hop e that yo u wou ld

                                           -9-
       continue and attem pt to com e to a verd ict. In any eve nt, I’m goin g to
       discharg e you to c ontinue to delibera te.

938 S .W .2d at 7 03–0 5. This Cour t stated that the trial cou rt had m erely

ordered the jury to co ntinue de liberating a nd had not directe d any of its

comm ents to juro rs in the m inority or urge d such jurors to ree valuate o r to

cede th eir views to th ose of the majority. Id. at 704. Similarly, in Dick, this

Court h eld that a tria l court did n ot err whe n it made the followin g com ment to

the jury after th e jury ann ounce d that it was unable to reach a verdict:

       Well, you haven’t been out that long really. We don’t need to know
       how yo u’re ind ividually split, gu ilty or inno cent, b ut if you’re still
       discussing the case, and you need to discuss it, and if you reach a point
       that you just absolutely know that you’re not going to be able to do
       anything, that’s when you need to let us know. You need to get to that
       point, or to th e point wh ere you’ve reache d a verdic t, then you need to
       com e bac k, eithe r way. B ut, it’s on ly 4 o’clo ck, an d we’ve got a c ouple
       or three good hours here that we can work on this, and have plenty of
       time toda y. So you a ll take your tim e and g o throug h it and dis cuss it,
       look a t the ch arge w e have given y ou an d work with it, be caus e that's
       what you’re supposed to do. You’re supposed to discuss it, take votes
       and that type thing . If you all will do that. Go back an d have
       refreshments; are there cokes and things?

872 S.W.2d at 946.



       As in Baxter and Dick, we find nothin g obje ctiona ble in th e trial co urt’s

comm ent in this ca se. The re was n othing im proper in ordering the jury to

deliberate further after the panel reported that it had been unable to agree on

a verdict. The trial court’s comment was not directed at any juror in the

mino rity, nor w as it a dir ection to any ju rors tha t they sh ould c once de the ir

views in order to achieve unanimity. When taken in context, it is clear that the

trial court’s instruction to “deliberate a little further” and then give “a report one

way or the other” co uld not be construe d by a rea sonab le juror as a n order to

reach a unanim ous verd ict.



                                           -10-
      Becau se there was no thing imp roper ab out the trial co urt’s com ment to

the jury, Appellant’s trial counsel was not deficient in failing to object to the

comment, and Appellant was not prejudiced thereby. Because Appellant has

failed to show that his counsel was deficient in failing to object to the comment

or that he was prejudiced thereby, the post-conviction court was correct when

it determ ined that A ppellant w as not en titled to relief on this basis. See

Henley, 960 S.W .2d at 580 . This issu e has n o merit.



      The judgment of the post-conviction court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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