        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 27, 2009

                  ADAM WESTER v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Anderson County
                       No. A7CR0222      Donald R. Elledge, Judge



                    No. E2009-00245-CCA-R3-PC - Filed July 23, 2010



The Petitioner, Adam Wester, appeals the Anderson County Criminal Court’s denial of post-
conviction relief from his conviction for felony murder in the perpetration of aggravated
child abuse, for which he received life imprisonment. The Defendant contends that trial
counsel was ineffective in failing to suppress the Petitioner’s written statements to law
enforcement and in failing to challenge the State’s expert regarding the cause of the victim’s
injuries. We affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Mart S. Cizek, Clinton, Tennessee, for the appellant, Adam Wester.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; David C. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Petitioner’s six-month-old son died from injuries the jury found were inflicted by
the Petitioner. See State v. Adam F. Wester, No. E2004-02429-CCA-R3-CD, Anderson
County (Tenn. Crim. App. Feb. 9, 2006). This court summarized the underlying facts of this
case in the Petitioner’s direct appeal:

              Amy Russell, the appellant’s ex-wife, testified that she . . .
              worked about sixty hours per week as a licensed practical nurse
and as a cashier at K-Mart. While Russell was working, her
mother or the appellant took care of the victim.

        On December 16, 2001, Russell was at home with the
victim and bathed and fed him. That afternoon, Russell’s
parents arrived to take the victim to have his picture made with
Santa Claus. Russell’s mother brought an outfit for the victim
to wear, and Russell and her mother dressed the victim in the
outfit. Russell’s parents left with the victim about 3:00 p.m.
Sometime later, the appellant arrived home, and Russell went to
work, leaving [her older children,] Aaron and Alyssa[,] at home
with the appellant. Russell returned home from work about
10:00 p.m. and found all of the lights turned on and Aaron and
Alyssa asleep. The appellant and the victim were gone, and the
victim’s car seat was on the floor in the living room. The
victim’s clothes were on the floor in his bedroom, and a dark
stain was on the mattress in his crib. About five minutes after
Russell returned home, the appellant telephoned and told Russell
that he had taken the victim to the emergency room. . . . Russell
went to the Methodist Medical Center in Oak Ridge and learned
that the victim had died. She said that she never hit the victim
or threw him down, that his last physical examination was in
October 2001, and that the victim was a normal, healthy baby.
She said that there were no bruises on the victim when she
bathed him earlier that day. Russell admitted that she pled nolo
contendere to failure to report child abuse.

         Alyssa Russell, who was five years old at the time of
trial, testified that . . . sometime on the day of the victim’s death,
the victim was in his crib and started to cry. The appellant came
into the room and told Alyssa to go to sleep. The victim was
lying on his stomach, and Alyssa saw the appellant hit the victim
on the victim’s back, causing the victim to bounce up and down.

       ...

       Michael Berthiaume, a physician’s assistant, testified that
he was working at Methodist Medical Center on the night of
December 16, 2001. The appellant came into the hospital
carrying the victim and said, “Please help me.” The victim was

                                 -2-
not breathing, and Berthiaume started cardiopulmonary
resuscitation (CPR), using two fingers to compress the victim’s
chest. The victim was wearing only a diaper, was wrapped in a
blanket, and was cold. On cross-examination, Berthiaume
testified that CPR could crush a child’s chest, damage internal
organs, or break ribs. He stated that the victim had “blotchy
spots” on his chest and that the appellant sounded distraught.

        Dr. Barry Cummings testified that on December 16,
2001, he was working at Methodist Medical Center. Michael
Berthiaume yelled that he needed help, and Dr. Cummings went
into the treatment room. The victim was lifeless and was not
breathing. He stated that the victim was cold, which could have
resulted from the victim’s having been dead for a period of time
or could have resulted from the victim’s having been exposed to
a cold environment. Dr. Cummings put an airway tube into the
victim’s lungs, and nurses used a bag and mask apparatus to get
oxygen into the victim. A cardiac monitor revealed that the
victim had a very slow, irregular heart rhythm but no pulse. Dr.
Cummings tried to resuscitate the victim for about one hour. At
some point, the victim had a slight return of cardiac activity, but
the activity was lost. He stated that the victim had bruises
across his chest and abdomen, a bruise under his chin, a few
bruises on his back, and redness on one of his buttocks. He
stated that he talked to the appellant and that the appellant told
him the following: The appellant put the victim to bed about
6:00 p.m. and propped up a bottle in the crib with the victim.
About 10:00 p.m., the appellant checked on the victim and
discovered that the victim was not moving. The appellant tried
to wake the victim, got no response, attempted CPR, and took
the victim to the emergency room.

        On cross-examination, Dr. Cummings testified that the
appellant was upset and pacing. He said that if CPR was done
incorrectly, it could cause broken ribs; a bruised heart; or a tear
in the mesentery, the blood vessels that supply blood to the
intestines. He stated that in order to do CPR on a baby properly,
one or two fingers should be used to depress the chest and that
the compressions should have a depth of one-half to one inch.
He said that too much pressure could fracture the sternum and

                                -3-
that a fractured sternum could injure the upper part of the
abdomen. Dr. Cummings stated that some of the victim’s
bruises looked fresh and that some looked about twenty-four- to
forty-eight-hours old.

        Wanda Russell, Amy Russell’s mother and the victim’s
grandmother, testified that on the afternoon of December 16,
2001, she and her husband took the victim to have his picture
made with Santa Claus. They returned to Amy Russell’s home
about 5:30 p.m. . . . On cross-examination, Mrs. Russell
testified that before she took the victim to have his picture made,
she helped Amy change the victim’s shirt and there were no
bruises on the victim at that time. She said that on the afternoon
of December 16, she noticed that a vein in the victim’s neck was
throbbing. She said that she did not remember telling a police
officer that the victim had shallow breathing. She stated that the
victim did not fuss or cry that afternoon.

        Don Russell, Wanda Russell’s husband, testified that on
December 16, 2001, he and his wife took the victim to the mall
in order to have the victim’s picture made with Santa Claus. He
stated that he never hit or threw the victim.                   On
cross-examination, Russell testified that on the way to the mall,
the victim appeared to have a breathing disorder. He stopped
the car, but the victim seemed to be all right. Russell stated that
before he and his wife took the victim to the mall, he held the
victim while his wife and Amy Russell changed the victim’s
clothes. He did not see any bruises on the victim.

       ...

        Sergeant Scott Ball of the Oak Ridge Police Department
testified that he was the Deputy Coroner for Anderson County.
. . . On December 16, the Medical Examiner for Anderson
County requested that Sergeant Ball go to the Methodist
Medical Center. Sergeant Ball viewed the victim’s body and
saw three, crescent-shaped marks on the victim’s head.
Sergeant Ball then went to the victim’s home.




                                -4-
        Detective Ron Boucher of the Oak Ridge Police
Department investigated the victim’s death. On the night of
December 16, Detective Boucher was paged and advised that a
six-month-old child had died at the Methodist Medical Center
emergency room. Detective Boucher went to the hospital,
talked to Dr. Cummings, and viewed the victim, who was
wearing only a diaper. Detective Boucher then went to the
victim’s home and inspected the victim’s bedroom. Several
days later, Detective Boucher and Sergeant Ball transported the
victim’s body to the medical examiner’s office in Nashville and
attended the victim’s autopsy. On December 19, Detective
Boucher interviewed the appellant and Amy Russell separately,
and both gave a written statement. According to the appellant’s
written statement, the appellant gave the victim a bottle about
6:00 p.m. and then went to watch television. Aaron and Alyssa
were watching television in another bedroom. About 9:30 p.m.,
the appellant checked on the victim and noticed that he was
lying on his back and looked pale. The appellant picked up the
victim and discovered that he was not breathing. The appellant
put the victim on Alyssa’s bed and began breathing into his
mouth. The appellant “started pushing him hard on his stomach
and sides and chest because I heard something in his throat.”
The appellant took the victim to the hospital. Detective Boucher
stated that the appellant also gave an oral statement in which the
appellant said that he checked on the victim, noticed that the
victim was not breathing, and then picked up the victim.

        Detective Boucher testified that after the appellant gave
his written statement, he interviewed the [Petitioner] again and
told the appellant that the victim had bruises, broken ribs, and a
broken collarbone.       The appellant gave another written
statement. In the statement, the appellant said that about one
month before the victim’s death, he was carrying the victim to
his room and slipped and fell. The victim “hit his face and some
of my weight landed on him.” The appellant also said that after
Wanda Russell brought the victim home on December 16, the
appellant was playing with the victim and “was throwing him up
and down in front of his bed.” The victim “hit my arm sideways
and he hit the side of the bed and bounced into the bed.” The
appellant checked the victim, believed the victim was all right,

                               -5-
and gave the victim a bottle. He then took Aaron and Alyssa to
get something to eat and to the video store. About 9:30 p.m., the
appellant checked on the victim. The victim was pale, and the
appellant tried to give him CPR. The appellant rushed the victim
to the hospital.

        On cross-examination, Detective Boucher testified that
he inspected the victim’s room and examined the victim’s crib
but did not collect any evidence from the home. Wanda Russell
told Detective Boucher that the victim had brittle bone disease
and shallow breathing. Detective Boucher stated that the
appellant told him that the appellant used his knuckles to give
the victim CPR and that the appellant pressed on the victim’s
chest, stomach, and sides. He stated that the appellant was not
a suspect on December 19, that he allowed the appellant to leave
the police department after giving his statements, and that the
appellant was not charged with a crime until June 2002.

       The State recalled Amy Russell to testify. She stated that
after she and the appellant left the police department on
December 19, her mother drove them home. In the car, the
appellant told Amy that he lied to the officers about throwing
the victim into the air. According to the appellant, he told the
story because the officers said they would harass Amy Russell
and her children until he told the truth. . . .

       Dr. Bruce Levy, the Chief Medical Examiner for the
State of Tennessee, testified that he performed the victim’s
autopsy. The victim had bruises on his neck, chest, abdomen,
and back, and most of the bruises occurred at the time of the
victim’s death or within several hours before his death. One
bruise was yellowish and looked to be older than the others. Dr.
Levy x-rayed the victim’s body and found that the victim had a
fractured collarbone that was in the process of healing but was
misaligned. The victim also had multiple rib fractures, and six
to eight of the fractures were in the process of healing. He said
that some of the rib fractures occurred at or near the time of the
victim’s death and that some of the fractures were several weeks
old. Dr. Levy collected six hundred twenty-five milliliters of
blood from the victim’s abdomen and found a tear in the

                               -6-
victim’s abdominal mesentery. He explained that the mesentery
is a fan-shaped piece of fat and tissue that connects the intestinal
tract to the bloodstream. He said that the tear in the mesentery
was three-eighths of an inch long and was beneath the victim’s
bellybutton. He said that one of the victim’s rib fractures could
not have caused the tear and that the tear resulted from a blow
or crushing injury to the front of the victim’s abdomen. He
stated that a considerable amount of force had to be used to
cause the injury and that the tear was not the type of injury that
would result from the normal handling of a child. He stated that
he had never known CPR to cause such an injury.

        Dr. Levy testified that he saw no indication that the
victim suffered from brittle bone disease. He said that the
victim suffered from battered child syndrome and that the
victim’s cause of death was blunt force injuries to the torso. He
stated that the victim’s rib fractures would have been painful
and would have prevented the victim from rolling over. He
stated that the bleeding caused by the mesentery tear would not
have been rapid and acknowledged that the tear could have
occurred as early as 7:00 p.m. On cross-examination, Dr. Levy
testified that the victim’s bruises occurred three to four hours
before his death, and he acknowledged that some of the victim’s
rib fractures could have occurred two months before his death.
He said that CPR could result in torn livers and rib fractures and
that only fingers should be used to perform CPR on a small
child, not knuckles. He stated that all of the victim’s rib
fractures were posterior and on either side of the victim’s
backbone and that CPR had never caused such posterior rib
fractures. He said that some of the victim’s rib fractures were
fresh and occurred within six hours of the victim’s death. On
redirect examination, Dr. Levy testified that the appellant’s
hitting the victim on the back, causing the victim to bounce up
and down, would be consistent with the victim’s broken ribs and
the bruising on the victim’s back.

      At Dr. Levy’s request, Dr. Hugh Berryman, a biological
anthropologist, examined the victim’s ribs and right collarbone.
Dr. Berryman stated that he found thirteen rib fractures that



                                -7-
               were at least two weeks old and eight fractures that occurred
               near the time of the victim’s death.

Id., slip op. at 1-6.

       At the post-conviction hearing, trial counsel testified that he had served as an assistant
public defendant for four years before being elected the Public Defender for the Seventh
Judicial District in 1989. He had been licensed to practice law in Tennessee since 1977. He
had represented defendants in twelve to fifteen murder cases, although this was his first
felony murder by aggravated child abuse case. He had tried other aggravated child abuse
cases.

       Trial counsel testified that the Petitioner was indicted in 2002 and that he was the
primary counsel assigned to the case. The Petitioner gave two statements to police, one
immediately after the victim died, and one later, which counsel reviewed. In the first
statement, the Petitioner stated that he could not wake the victim and that the victim was not
breathing. The Petitioner stated that he thought the victim might be choking and attempted
mouth-to-mouth resuscitation, that he pushed on the victim’s stomach and sides, and that he
took the victim to the hospital. In the second statement, the Petitioner stated that at about a
month before the victim died, he had been holding the victim and had fallen on the infant.
The Petitioner stated that he had also been playing with the victim, tossing him into the air,
and had not caught him well one time. Trial counsel stated that he was concerned about the
statements’ lack of thoroughness because details were missing.

       Trial counsel testified that he and the Petitioner discussed the pros and cons of the
Petitioner’s testifying. They decided that the statements were the best way to provide the
Petitioner’s version of events to the jury. He said that the Petitioner maintained that he had
injured the victim during the administration of CPR and that the defense theory was CPR
“gone wrong.” He said that the statements were not incriminating because the Petitioner did
not admit to child abuse. The statements provided a reasonable explanation of how the
injuries occurred. They decided early in counsel’s representation of the Petitioner that
counsel would not file a motion to suppress the statements. He said that the statements
would have stood in place of the Petitioner’s testimony.

        Trial counsel testified that he did not believe that the outcome of a suppression
hearing would have been determinative of whether the Petitioner testified. Even if the
statements had been suppressed because of a Miranda violation and the Petitioner had chosen
to testify, the State might have been able to use the statements to impeach the Petitioner’s
testimony. He said that because the Petitioner left the police station after making both
statements, he was not sure that he would have succeeded on the motion to suppress. He

                                               -8-
agreed that if the statements had been suppressed, he could have “opened the door” to have
brought them in, but he said that he would not have taken that chance. He acknowledged
that the Petitioner would not have been adversely affected by his filing a motion to suppress.
When asked whether he could have put himself in “exactly the same position” had the trial
court suppressed the statements, he said that he could have changed his position later but that
he was not sure why he would do so. He said that there was no reason to suppress the
statements “because the accidental death caused by the mis-administration of [CPR] in a
good-faith effort was the defense we had all along.”

        Trial counsel testified that the victim’s cause of death was determined to have been
pressure on the mesentery, which caused it to tear and resulted in internal bleeding. Counsel
hired Dr. Randy Pedigo, a former Knox County medical examiner, as an ex parte expert to
assist him. He said that Dr. Pedigo was available to testify but would not have made the best
witness because Dr. Pedigo had “some personal problems.” Counsel and Dr. Pedigo traveled
to Nashville and interviewed Dr. Bruce Levy, who had performed the autopsy on the victim.
Dr. Pedigo was retained in part to help trial counsel find an expert who would have testified
to a reasonable degree of medical certainty that the victim’s injuries could have been caused
by incorrectly performed CPR. However, Dr. Pedigo was unable to find an expert to
contradict Dr. Levy’s testimony. Dr. Pedigo sat behind trial counsel and advised him during
the trial.

        Trial counsel testified that Dr. Barry Cummings was the emergency room physician
who treated the victim. He said that Dr. Cummings testified that putting too much pressure
on the victim’s chest while attempting to perform CPR could have been sufficient to tear the
mesentery and to cause the bleeding that led to the victim’s death. However, Dr. Cummings
was unwilling to state an opinion to a reasonable degree of medical certainty that this was
what occurred. He said that Dr. Levy, on the other hand, testified to his opinion to a
reasonable degree of medical certainty that CPR performed incorrectly would not have torn
the victim’s mesentery. Both witnesses were accepted as experts at the trial. Counsel said
that he was aware of the nature of Dr. Levy’s testimony before the trial and that if the State
had not called Dr. Cummings to testify, he would have called Dr. Cummings to testify for
the defense. He said, however, that he was able to elicit cross-examination testimony from
Dr. Cummings that was favorable to the Petitioner.

       On cross-examination, trial counsel testified that he had defended three to five
aggravated child abuse cases. When asked how he had learned the medical terminology that
he used during the trial and why he had used a certain treatise, he attributed his knowledge
to Dr. Pedigo’s help. He said that he and the Petitioner discussed whether the Petitioner
would testify “at least a half a dozen times.” He said that the Petitioner was evaluated by
Ridgeview Psychiatric Center to determine whether the Petitioner had “awareness enough

                                              -9-
to turn down the plea offer we’d been given.” He agreed with the Petitioner that other than
a “human presence,” the Petitioner’s testimony would not have added anything to the
information contained in the Petitioner’s statements. He was concerned in part about the
Petitioner’s testifying because the Petitioner had a prior criminal record.

      Trial counsel testified that he would not have chosen a different expert than Dr.
Pedigo to assist him because Dr. Pedigo knew Dr. Levy and because Dr. Pedigo had the
necessary education and contacts. He said that if there had been an objective, scientific way
to show that Dr. Levy was wrong, he would have needed an expert to testify to that.
However, the medical literature did not give a definitive answer about whether incorrectly
performed CPR could cause a tear of the mesentery.

       The Petitioner testified that trial counsel represented him at the trial and on appeal.
He said that he met with Dr. Pedigo but knew that Dr. Pedigo could not testify because of Dr.
Pedigo’s past. He said that his mother-in-law informed trial counsel that the victim had
shallow breathing and brittle bone disease and that she testified to it at the trial.

       The Petitioner testified that he made the two statements to police on the same day.
He said that Detective Boucher told him that it was mandatory that he give a statement
because his child had died. He said that the police interviewed his wife for about two hours
before they interviewed him. He said that police officers took him to a small room, that they
seated him with his back to the wall, and that two officers stood in front of the door. He said
that Detective Boucher asked him how he had killed his son and that he replied that he did
not kill his son. He said Detective Boucher insisted that he had killed the victim and
demanded that he write a statement. He wrote a statement, but Detective Boucher told him
that what he had written was not true and demanded that he write a second statement. He
wrote a second statement that was not “completely correct.” He said that he felt as if he had
to write what he did in the second statement before the police would allow him to leave. He
was not advised of his Miranda rights, although he said that he was familiar with them. He
believed that if he tried to leave, the officers would have “jumped” him.

        On cross-examination, the Petitioner testified that he told trial counsel that he felt
intimidated and pressured by Detective Boucher. He said that Detective Boucher testified
at the trial and that he wanted counsel to ask Detective Boucher why the Petitioner had to
give a second statement if he had given the first statement by choice. He said that he did not
understand that counsel could not ask such a question if counsel wanted the statements to be
admitted into evidence. He acknowledged that he wrote the statements and that no one
forced him. He did not agree that the statements he gave to the police were helpful to his
case. He agreed that when he gave the statements, he was not under arrest and was allowed



                                             -10-
to leave. He said that he made a third statement but that the police were dissatisfied with it
and destroyed it.

         The Petitioner testified that he and trial counsel discussed several times whether he
would testify, and he agreed that it was his decision not to testify. He acknowledged that the
facts of the victim’s alleged shallow breathing and brittle bone disease were fully explored
at the trial. At the time of the trial, he did not know of an expert that trial counsel could have
called to testify about brittle bone disease, but he had since researched some doctors on the
Internet. He said that one doctor used to live in New York but was no longer there. The
doctor in New York never examined the victim. He agreed that he had asserted that trial
counsel should have called the victim’s doctor to testify about the number of times the doctor
had examined the victim and whether the doctor had observed any injuries. He said that he
could not remember the doctor’s name. He agreed that his wife had testified that the victim’s
“well-baby” examinations were conducted by the Health Department. He acknowledged that
he did not know if the victim was ever seen by a doctor for a check-up. He agreed that he
was present at the trial when Dr. Cummings was questioned about sudden infant death
syndrome, mesentery injuries, CPR, fractures to the victim’s legs, bruising, shallow
breathing, and blunt force trauma. He agreed that trial counsel strongly cross-examined the
State’s witnesses. He recalled that counsel cross-examined the coroner about bone disorders.
He said that counsel developed the theory of improper CPR but that he did not realize that
incorrectly performing CPR on the victim could cause the victim’s death. He said that he
was just trying to save his son. He agreed that Dr. Cummings’s testimony was helpful to his
defense.

       The trial court accredited trial counsel’s testimony. The trial court found that the
decision to allow the Petitioner’s statements into evidence was a tactical one. The court also
found that counsel had made a significant effort to find an expert to testify that CPR could
have caused the victim’s injuries. The trial court determined that the Petitioner received the
effective assistance of counsel.

                                                I

        The Petitioner contends that he received the ineffective assistance of counsel because
(1) trial counsel failed to seek to suppress his statements to the police and (2) trial counsel
did not develop expert medical proof to challenge Dr. Levy’s testimony regarding the likely
cause of the injuries leading to the victim’s death. The State contends that the trial court
correctly concluded that the petitioner received the effective assistance of counsel. We agree
with the State.




                                              -11-
        The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f); Dellinger v.
State, 279 S.W.3d 282, 294 (Tenn. 2009). Once a petitioner establishes the fact of counsel’s
errors, the trial court must determine whether those errors resulted in the ineffective
assistance of counsel. Dellinger, 279 S.W.3d at 293; see Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984).

        On appeal, we are bound by the trial court’s findings of fact unless we conclude that
the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456-57 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review
the trial court’s conclusions as to whether counsel’s performance was deficient and whether
that deficiency was prejudicial under a de novo standard with no presumption of correctness.
Id. at 457. Post-conviction relief may only be given if a conviction or sentence is void or
voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,
466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will
only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance
prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong
requires a petitioner to demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within
the range of competence demanded of attorneys in criminal cases. Further, the court stated
that the range of competence was to be measured by the duties and criteria set forth in
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,
487 F.2d 1197, 1202-04, (D.C. Cir. 1973). Also, in reviewing counsel’s conduct, a “fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466
U.S. at 689. “Thus, the fact that a particular strategy or tactic failed or even hurt the defense
does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical choices if they

                                              -12-
are informed ones based upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982); see DeCoster, 487 F.2d at 1201.

        The trial court determined that the Petitioner failed to show his allegations of the fact
of counsel’s errors by clear and convincing evidence. The evidence does not preponderate
against the trial court’s factual findings. The trial court accredited trial counsel’s testimony.
The decision not to attempt to suppress the Petitioner’s statements was a tactical decision
made after consultation with the Petitioner. The Petitioner’s statements supported the
defense’s theory of incorrectly performed CPR in lieu of the Petitioner’s testimony. Trial
counsel also was unable to find an expert witness to testify in direct contradiction to the
medical examiner’s testimony, but counsel was able to elicit testimony favorable to the
Defendant from another expert, Dr. Cummings. Dr. Cummings believed that incorrectly
performed CPR could cause a tear to the mesentery, but he was unable to state his opinion
in this case to a reasonable degree of medical certainty. Counsel testified that he would have
called Dr. Cummings to testify for the defense if he had been unable to elicit favorable
testimony on cross-examination.

       The Petitioner has failed to show how counsel’s performance fell below an objective
standard of reasonable representation and how he was prejudiced. We hold that the trial
court did not err when it determined that the Petitioner received the effective assistance of
counsel. The Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.


                                                 ___________________________________
                                                 JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -13-
