          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                      FEBRUARY SESSION, 1997        FILED
                                                    June 6, 1997

                                               Cecil W. Crowson
WENDELL KING, JR.,         )
                                             Appellate Court Clerk
                           )    No. 01C01-9603-CR-00086
      Appellant            )
                           )    DAVIDSON COUNTY
vs.                        )
                           )    Hon. Seth W . Norman, Judge
STATE OF TENNESSEE,        )
                           )    (Post-Conviction)
      Appellee             )



For the Appellant:              For the Appellee:

PAULA OGLE BLAIR                CHARLES W. BURSON
176 Second Avenue, North        Attorney General and Reporter
Suite 406
Nashville, TN 37201             LISA A. NAYLOR
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                VICTOR S. (TORRY) JOHNSON III
                                District Attorney General

                                RONALD E. MILLER
                                Asst. District Attorney General
                                Washington Square, Suite 500
                                222-2nd Avenue, North
                                Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Wendell King, Jr., appeals the Davidson County Criminal

Court's dismissal of his petition for post-conviction relief. In this appeal, he

raises the following issues:

        I. Whether trial counsel was ineffective for failing to locate two
        witnesses;

        II. Whether the burden of producing witnesses at the post-
        conviction hearing is "inherently unfair" to an incarcerated
        petitioner;

        III. Whether the trial court properly denied the appellant's motion
        for a continuance; and

        IV. Whether the post-conviction court was biased against the
        appellant.1


        After a review of the record, we conclude that the appellant's contentions

are without merit. The judgment of the trial court is affirmed.




                                          I. Background



        The appellant was convicted of the felony murder and aggravated rape of

Jeannie Barlow, who was eighteen years old at the time of her death. Although

no direct evidence connecting the appellant to the crimes was presented at trial,

the scientific evidence was overwhelming. His hair, his semen, and his saliva

matched that left on the victim's body by the murderer.                   King v. State, No.

01C01-9310-CR-00366 (Tenn. Crim. App. at Nashville, Aug. 4, 1994), perm. to

appeal denied, (Tenn. Oct. 31, 1994). Moreover, the DNA testing completed by

an FBI technician excluded 99.9999 percent of the population as possible

suspects. Id. As a result of these convictions, the appellant was sentenced to



        1
         All four of the appellant's issues relate either directly or indirectly to the two missing
witness es identified as "Dale " and "W allace."

                                                    2
life imprisonment plus thirty years. His convictions and sentences were affirmed

on direct appeal by this court. See King, No. 01C01-9310-CR-00366. On

March 21, 1995, the appellant filed a pro se post-conviction petition.

Subsequently, the appellant was provided appointed counsel, who filed an

amendment to the petition.



        At the post-conviction hearing, the appellant testified that his trial counsel

was ineffective for failing to locate and question two potentially favorable

witnesses, "Dale" and "Wallace." Although he did not know the surnames of

these two men, the appellant did know where they lived at the time of the murder

and the type of cars they drove. The appellant argued that these witnesses

would have established that the appellant and the victim had previously engaged

in consensual sexual intercourse. In addition, he contended that these

witnesses would have also discredited the testimony of the victim's mother who

testified against him at trial. 2 The appellant stated that trial counsel was aware of

these potential witnesses, but failed to conduct a proper investigation which

would reveal their whereabouts. Moreover, he averred that the trial court

wrongfully denied him a continuance on the first day of his trial so that "Dale" and

"Wallace" could be located. Despite his allegations, the appellant conceded that

these men knew nothing about his actions on the day of the rape and murder of

the victim.



        The appellant's trial counsel testified that the appellant did provide him

with the names of the two potential witnesses identified only as "Dale" and

"Wallace," however, all efforts to locate them were unsuccessful. Trial counsel

indicated that two investigators with the Metro Public Defender's Office

repeatedly attempted to locate the men during the pre-trial investigation of this



        2
          At trial, the victim's mother acknowledged that the appellant and her daughter knew each
other an d that the a ppellant pre viously had spent the night in her a partm ent.

                                                3
case and throughout the trial, but were unable to do so. Counsel further testified

that he met with the appellant on four or five occasions and provided written

evidence to further document the time spent on the appellant's case. With

regard to the denial of the appellant's motion for continuance, trial counsel stated

that the trial court denied the motion on the ground that the appellant had

already had nineteen months to locate any potentially favorable witnesses.



       At the conclusion of the hearing, the court dismissed the appellant's

petition finding sufficient grounds existed for denying the appellant's motion for

continuance and that trial counsel's performance was not deficient.




                            II. Ineffective Assistance



       The appellant first alleges that he was denied the effective assistance of

counsel because his trial counsel failed to locate two potentially favorable

witnesses. To succeed in such a challenge, the appellant must show, by a

preponderance of the evidence, Taylor v. State, 875 S.W.2d 684, 686 (Tenn.

Crim. App. 1993), perm. to appeal denied, (Tenn. 1994), first, that counsel's

representation fell below the range of competence demanded of attorneys in

criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and, second,

that, but for these errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State

v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110

S.Ct. 211 (1989). On post-conviction review, there is a strong presumption of

satisfactory representation, Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim.

App. 1995), and the appellant bears the burden of proving his allegations by a

preponderance of the evidence. Taylor v. State, 875 S.W.2d 684, 686 (Tenn.

Crim. App. 1993). Moreover, when this court undertakes review of a lower


                                         4
court's decision on a petition for post-conviction relief, the lower court's findings

of fact are given the weight of a jury verdict and are conclusive on appeal absent

a finding the evidence preponderates against the judgment. Clenny v. State, 576

S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct.

2170 (1979); Taylor v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993),

perm. to appeal denied, (Tenn. 1994).



       When an appellant contends that trial counsel failed to locate potential

witnesses in support of his defense, he bears the burden of presenting these

witnesses at the evidentiary hearing. Black v. State, 794 S.W.2d 752 (Tenn.

Crim. App. 1990)(emphasis added). Before he can be entitled to relief on this

ground, the appellant must produce a material witness(es) who (1) could have

been found by a reasonable investigation and (2) would have testified favorably

in support of his defense if called. Black, 794 S.W.2d at 753. If the appellant

fails to present such witnesses, he fails to establish the prejudice prong

mandated by Strickland v. Washington, supra. Black, 794 S.W.2d at 753. The

appellant, in the case before us, did not present the alleged material witnesses,

identified as "Dale" and "Wallace." Moreover, from the appellant's testimony at

the hearing, it is impossible to determine how the testimony of these witnesses

would have been relevant to his case.3 This issue is without merit.



       In a related issue to the appellant's claim of ineffectiveness, he contends

that production of the two witnesses at the post-conviction hearing unfairly shifts

the burden of proof upon him. The appellant acknowledges that he bears the

burden of proving his claims, however, he argues that, because of his continuous

incarceration following arrest, this burden is inherently unfair. It is well-settled

within this state that the defendant has the burden of proving his allegations by a


       3
          Among other reasons we note that Tenn.R.Evid. 412(c)(3) permits introduction of the
victim's sexual behavior with the accused only when the defendant relies upon consent. Consent
was no t relied upon by the app ellant in this ca se. See King, No. 01C01-9310-CR-00366.

                                              5
preponderance of the evidence, regardless of the nature of the allegation and

the custodial situation of the defendant. Taylor, 875 S.W.2d at 686; Black, 794

S.W.2d at 752. The appellant, in the present case, has failed to carry this

burden. This contention is without merit.



                                   IV. Motion for Continuance



         The appellant also contends that he was denied his right to compulsory

process by the trial court's refusal to grant a continuance so that witnesses for

the defense could be secured.4 Specifically, he asserts that, because he was

incarcerated prior to his trial, he needed additional time to secure two witnesses,

"Dale" and "Wallace," whom trial counsel had been unable to locate.



             The decision whether to grant a continuance "rests within the discretion

of the trial court." State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App.

1991). A denial of a continuance will not be disturbed "unless it appears upon

the face of the record that the trial judge abused his discretion and prejudice

enured to the accused as a direct result of the trial judge's ruling." State v.

Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990). Moreover, in order to

gain relief in the post-conviction context, the appellant must also demonstrate

that the trial court's denial abridged his constitutional right to fundamental

fairness in the conviction process. Conner v. Bowen, 842 F.2d 279, 283 (11th

Cir. 1988). The granting or refusal of a continuance "rarely reaches

constitutional proportions." State v. Harris, No. 03C01-9311-CR-00381 (Tenn.

Crim. App. at Knoxville, Feb. 28, 1996),perm. to appeal denied, (Tenn. Feb. 3,

1997) (citing Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir.), cert. denied,

469 U.S. 924, 105 S.Ct. 306 (1984).


         4
          W e not e tha t the a ppe llant's Sixth Am end me nt cla im o f a de nial of his rig ht to
com puls ory pro ces s is m isplac ed. T he re cord reflec ts tha t com puls ory pro ces s to o btain
witne sse s wa s in fa ct iss ued on be half o f the a ppe llant a t trial.

                                                       6
        After considering the merits of this issue, we cannot conclude that the trial

court's denial of the appellant's motion for additional time to secure the presence

of unlocated witnesses implicates due process. In determining whether the trial

court's action rendered the appellant's trial fundamentally unfair, we must look

for actual prejudice to the appellant. Continuances may be granted for the

purpose of securing the presence of identifiable witnesses if their testimony is

material and admissible. At the post-conviction hearing, as well as before the

trial court, the appellant failed to demonstrate that these witnesses were material

witnesses or that their presence could have been secured at the trial if given

additional time. Accordingly, the trial court did not abuse its discretion by

denying the appellant's motion for continuance. This issue is without merit.




                              V. Bias of Post-Conviction Judge



        In his final issue, the appellant asserts that he did not receive a full and

fair hearing on all the grounds raised in his post-conviction petition because the

post-conviction judge was biased against him. He avers that the court denied

him his right to testify as to the importance of the missing witnesses.

Specifically, he complains that the trial court's comment that, "prior sexual




intercourse has nothing to do with the charge of rape," demonstrated the court's

bias against him.5

        5
          MS. BL AIR: No w, how w as Mr. M oore's re presen tation not up to par, not
effective? . . .

        APPELLANT: Well, . . . I kept repeating myself and telling him that these two
        witnesses was key to my defense because the DA's theory was that the
        relationship between me and the victim wasn't the way I said it, which it was an
        intimate relationsh ip. So, they [sic] the ory was tha t I raped he r.
                             And thes e two witne sses c ould sho w that the n ight
        that I met this victim, we had sexual intercourse, willingly, the first night. The
        mo ther a lso ha d sex with D ale an d W allace . Now , bein g tha t I can 't tell you their
        last name, I don't know their last name. But I know where they lived at. I know

                                                      7
       During the hearing, the appellant stated that the missing witnesses would

have testified that, prior to the victim's rape and murder, he and the victim had

engaged in consensual intercourse. This fact alone does not make the

witnesses material, or that, if produced, their testimony would have been relevant

and, therefore, admissible. The standard employed in determining bias is an

objective one. Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994).

Moreover, adverse rulings by a court are not usually sufficient grounds to

establish bias. Id. at 821. The comment made by the post-conviction court does

not indicate bias or that the trial court failed to consider the appellant's testimony.

Accordingly, there is nothing in the record to indicate that the post-conviction

judge was biased or unfair. This issue is without merit.




                                             VI. Conclusion



       After a review of the record and the issues presented by the appellant, we

conclude that the post-conviction court properly dismissed the petition for post-

conviction relief. The judgment of the post-conviction court is, therefore,

affirmed.




                                              ____________________________________
                                              DAVID G. HAYES, Judge


       the kind of cars th ey drive. . . .

                 They c ould ha ve told th e Cou rt and p roved the DA 's theo ry that I did n't
       have to rape her. Do you understand? That's what I'm saying.

       MS. BL AIR: So , let me ju st reiterate . . . .

       COURT: Prior sexual intercourse has nothing to do with the charge of rape, Ms.
       Blair.




                                                    8
CONCUR:


______________________________
GARY R. WADE, Judge


______________________________
J. CURWOOD WITT, JR., Judge




                                 9
