         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs July 16, 2003

               VERNON ELKINS, JR. v. STATE OF TENNESSEE


                  Direct Appeal from the Circuit Court for Cannon County
                         No. F01-44    James K. Clayton, Jr., Judge



                    No. M2002-00117-CCA-R3-PC - Filed August 15, 2003


The petitioner appeals the denial of post-conviction relief after his second degree murder conviction
and argues his trial counsel (1) deprived him of his right to testify, and (2) failed to effectively
represent him at trial. We affirm the judgment of the post-conviction court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

Dale W. Peterson, Woodbury, Tennessee, for the appellant, Vernon Elkins, Jr.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       The facts presented at the petitioner’s trial for first degree murder were as follows:

              Prior to June 26, 1996, [the petitioner], his mother, grandmother, and aunt (the
       victim) peacefully shared a home in Cannon County. On that date, nothing unusual
       had occurred between [the petitioner] and the victim. They neither fought nor argued.

               However, [the petitioner] entered the house, passed by his mother,
       grandmother, and aunt in the living room, and went to a nearby hall closet. In the
       closet, he retrieved his 30-30 lever-action deer rifle. From the hallway, [the
       petitioner] fired the rifle at least three times. One of the shots hit and killed his aunt.

               [The petitioner’s] mother ran away from the house as soon as she heard
       gunshots. His grandmother, splattered with the victim’s blood, went to a neighbor’s
       house to get help. Law enforcement arrived shortly thereafter and found [the petitioner]
        standing in the front yard. Without any prompting, [the petitioner] stated, “I did it”
        and “I shot her.” Officers immediately took [the petitioner] into custody without
        further incident.

                The [petitioner] did not testify at trial and no defense proof was offered.

State v. Vernon Elkins, Jr., No. M1999-00107-CCA-R3-CD, 1999 Tenn. Crim. App. LEXIS 1231,
at **1-2 (Tenn. Crim. App. Dec. 15, 1999, at Nashville), perm. to app. denied (Tenn. 2000).

         The jury convicted the petitioner of second degree murder, and the trial court sentenced him
to twenty-three years incarceration. His conviction was upheld on direct appeal. Id. The petitioner
then sought post-conviction relief on the grounds that his trial attorney deprived him of his right to
testify and failed to introduce exculpatory evidence.

                                 POST-CONVICTION HEARING

         At the post-conviction hearing, the petitioner testified he and his trial counsel did not discuss
trial preparations, although his attorney did advise him of the state’s plea offers. The petitioner said
his sole recollection of the day of the offense was standing in the yard. He stated he saw his
grandmother, who did not have any blood on her, also standing in the yard talking to a preacher.
According to the petitioner, he smoked a cigarette and waited for the preacher to leave, and he
recalled nothing further until his arrest. The petitioner said that if he had testified at trial, he would
have testified he did not commit the murder and had no reason to kill his aunt. The petitioner stated
he told his attorney he wanted to testify at trial. At the post-conviction hearing, the petitioner said
he would have been the only defense witness at trial because his mother was incompetent and his
grandmother was deceased.

        At trial, the local police chief testified the petitioner admitted shooting his aunt. The
petitioner testified at post-conviction that he advised trial counsel he did not make such a statement.
He stated he also told trial counsel that the murder weapon did not belong to him. He said he did
not know where the gun came from, and his fingerprints were not on it. According to the petitioner,
he asked trial counsel to investigate the origin of the gun.

         The petitioner’s trial counsel testified he did not recall the petitioner saying he wanted to
testify. Trial counsel stated the petitioner repeatedly advised him that he had no recollection of the
events in question. Trial counsel also recounted the petitioner’s statements indicating he had no
reason to shoot his family. The attorney said he and the petitioner discussed “the fact that since he
claimed to have no recollection of the events of that day, there would basically be nothing he could
say if he did testify.” Trial counsel testified he did not feel the petitioner’s testimony would have
been beneficial at trial, and, therefore, “the decision was made that he wouldn’t testify.”

        Trial counsel stated he, his investigator, and the petitioner discussed the facts and
circumstances surrounding the crime and the results of their investigation. Trial counsel stated the
petitioner never told him he had not made the incriminating statement to the police. Further, trial


                                                   -2-
counsel did not recall discussing ownership of the murder weapon. He said the petitioner indicated
he exercised control over the guns in the home.

        According to trial counsel, the facts of the petitioner’s case did not lend themselves to a
defense theory that someone other than the petitioner was responsible for the shooting. Although
he tried to suggest to the jury that the shooting might have been accidental, the defense theory was
that the petitioner was responsible but not to the degree charged in the indictment.

       The post-conviction court denied the post-conviction relief petition after finding trial counsel
provided effective representation.

                                    STANDARD OF REVIEW

        The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Henley v. State,
960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997).
This court may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn
by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the
post-conviction court’s conclusions of law are reviewed under a purely de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                                      WRITTEN FINDINGS

        We note the trial court did not reduce its findings and conclusions to writing as part of its
order; instead, it pronounced them from the bench. The trial court is required to set forth written
findings of fact and conclusions of law for each claim raised in a post-conviction relief petition.
Tenn. Code Ann. § 40-30-211(b). Although this requirement is mandatory, reversal is not always
warranted when a trial judge fails to include written findings of fact and conclusions of law in the
order dismissing a post-conviction petition. State v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim.
App. 1984). The legislative intent of the statute is to aid the appellate court’s review of post-
conviction proceedings. Id.; George v. State, 533 S.W.2d 322, 326 (Tenn. Crim. App. 1975).
Where the court orally pronounces its findings from the bench, failure to state findings of fact and
conclusions of law in the final order may be harmless error. State v. Higgins, 729 S.W.2d 288, 290-
91 (Tenn. Crim. App. 1987). For reasons hereinafter stated, we conclude the failure to file written
findings was harmless.

                                      RIGHT TO TESTIFY

        The petitioner’s first contention is that the post-conviction court erred in not finding trial
counsel deprived him of his right to testify. The petitioner testified at the post-conviction hearing
that he advised his trial attorney that he wished to testify at trial. Trial counsel testified that the
petitioner did not tell him that he wanted to testify. He further testified it was decided that the
petitioner would not testify at trial because trial counsel did not feel it would be beneficial. It is

                                                 -3-
unclear from this testimony whether the petitioner made the decision that he would not testify at
trial. The trial transcript is also silent as to whether it was the petitioner’s decision not to testify. The
post-conviction court failed to make a finding as to whether the petitioner decided not to testify.
Instead, the court merely found it would not have been in the petitioner’s best interest to testify, and
that the petitioner failed to prove his trial counsel was ineffective for failing to present his testimony.

         Both the state and federal constitutions grant the criminal accused the fundamental right to
testify in his own defense. Momon v. State, 18 S.W.3d 152, 157 (Tenn. 1999). The decision to
exercise or waive this right rests solely with the accused, not his attorney. Id. at 161. Therefore,
when the petitioner raised the issue of whether his trial counsel deprived him of his right to testify,
the proper question before the post-conviction court was whether the petitioner knowingly,
voluntarily, and intelligently waived his right to testify rather than whether trial counsel was
ineffective in failing to present the petitioner’s testimony. A waiver of the right to testify may not
be presumed from a silent record. Id. at 162.

        We note the petitioner’s trial was held prior to the Tennessee Supreme Court’s publication
of the Momon decision, which established specific procedures for ensuring that a defendant’s waiver
of his right to testify is made knowingly, voluntarily, and intelligently. Id. The procedures
mandated in Momon apply only to cases tried after it was decided, and, therefore, there was no
requirement that petitioner’s trial counsel comply with them. Id. at 163. Yet, even prior to the
publication of Momon, it was necessary for trial counsel to allow the petitioner to make his own
decision as to whether or not to testify at trial. Id. It is unclear from the record, in the absence of
a finding of fact, whether or not the petitioner personally waived his right to testify. Under most
circumstances, we would be forced to remand this matter to the post-conviction court for further
findings of fact regarding this issue. However, based on the record before us, we conclude that even
if the petitioner were deprived of his right to testify, it was not prejudicial to the petitioner.

        If a defendant is deprived of his right to testify by counsel’s unilateral decision, the state
bears the burden of establishing that denial of this constitutional right was harmless beyond a
reasonable doubt. Id. at 169. In making this determination, a court should consider: “(1) the
importance of the defendant’s testimony to the defense case; (2) the cumulative nature of the
testimony; (3) the presence or absence of evidence corroborating or contradicting the defendant on
material points; [and] (4) the overall strength of the prosecution’s case.” Id. at 168.

         In the instant case, the testimony of both the petitioner and trial counsel indicated that if the
petitioner testified at trial, his testimony would have been that he had no recollection of the events
in question, that he was not guilty of the crime, and that he had no reason to shoot his aunt. This
evidence would not have been beneficial to his case in light of the strong proof offered by the state
that he walked into his home, took a firearm from the closet, shot the victim while firing multiple
shots, and admitted to the police chief that he shot the victim. The petitioner’s mother testified at
trial that she was present when the petitioner went to the closet and fired the shots. Further, there
was proof that immediately after the shooting, the petitioner’s grandmother, covered in the victim’s
blood, fled to a neighbor’s home, where she reported the petitioner had shot the victim. We conclude
the record, under these circumstances, established that if the petitioner were deprived of his right


                                                    -4-
to testify, the error was harmless beyond a reasonable doubt. Thus, the petitioner is not entitled to
relief.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner also argues trial counsel was ineffective for (1) failing to explore the theory
that the petitioner’s mother shot the victim; (2) failing to question the state’s witness as to whether
there were fingerprints found on the murder weapon; and (3) conceding the petitioner shot the
victim. We conclude the trial court did not err in finding the petitioner failed to establish that he did
not receive the effective assistance of counsel.

        Since the petitioner alleged ineffective assistance of counsel, it was petitioner’s burden in
the post-conviction court to prove the allegations by clear and convincing evidence in order to get
relief. Tenn. Code Ann. § 40-30-210(f). We are required to affirm the post-conviction court’s
findings of fact unless the petitioner proves that the evidence preponderates against those findings.
Burns, 6 S.W.3d at 461.

       In order to prove ineffective assistance of counsel, the petitioner must prove (1) that
counsel’s performance was deficient, and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the proceedings were
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984). The Tennessee Supreme Court has also applied this standard to the right to trial
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417,
419 n.2 (Tenn. 1989).

A. Failure to Explore Theory that Petitioner’s Mother Shot the Victim

        The petitioner contends trial counsel was ineffective for failing to develop a defense theory
that the petitioner’s mother shot the victim. During the post-conviction hearing, the petitioner
questioned trial counsel as to whether there was a plausible theory that the petitioner’s mother had
a motive to kill the victim. Trial counsel’s response indicated such a theory was not plausible, and
he explained that there was no evidence to dispute the state’s proof that the petitioner shot the
victim. He stated both the petitioner’s grandmother and mother, the only two witnesses to the crime,
had given statements to the effect that the petitioner walked into the house, went to the closet,
brought out a gun, and began shooting.

        The petitioner presented no proof that trial counsel had access to evidence that anyone other
than the petitioner fired the weapon. There is no support for the petitioner’s contention that trial
counsel’s performance was deficient for failing to present a defense theory not supported by the
evidence.

B. Lack of Fingerprints on the Murder Weapon

       The petitioner also contends trial counsel was ineffective for failing to elicit evidence during
cross-examination of the state’s ballistics expert that there were no fingerprints on the murder

                                                  -5-
weapon. However, the petitioner failed to present any proof at the post-conviction hearing that if
trial counsel had pursued such a line of questioning, it would have resulted in testimony to the effect
that no fingerprints were found on the weapon. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). The petitioner has failed to show prejudice.

C. Trial Counsel’s Concession that Petitioner Shot the Victim

        Finally, the petitioner maintains his trial counsel was ineffective for conceding that the
petitioner fired the fatal shot and seeking a lesser conviction. The petitioner may not second-guess
a reasonably based trial strategy and may not criticize a sound, but unsuccessful, tactical decision
made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994); Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We further note that
trial counsel was successful in getting a conviction of second degree murder, a lesser offense of first
degree murder. Further, trial counsel’s testimony at the post-conviction hearing indicated there was
no proof available to dispute the state’s evidence that the petitioner was the shooter. The petitioner
failed to establish trial counsel’s trial strategy was the result of inadequate preparation or was
unreasonable given the facts and circumstances of the petitioner’s case. The evidence supported the
post-conviction court’s determination that trial counsel provided the petitioner with competent,
effective representation.

                                           CONCLUSION

        Although the post-conviction court erred in failing to make a determination as to whether
the petitioner waived his right to testify at trial, we conclude that even if the petitioner were deprived
of his right to testify, the error would have been harmless beyond a reasonable doubt under the
circumstances of this case. Further, we conclude the petitioner failed to establish he was denied the
effective assistance of counsel. Accordingly, we affirm the judgment of the post-conviction court.



                                                         ____________________________________
                                                         JOE G. RILEY, JUDGE




                                                   -6-
