             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           NOVEMBER 1997 SESSION
                                                        February 18,1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
GARY T. DOTSON,                    )
                                   )    C.C.A. NO. 01C01-9607-CR-00318
             Appellant,            )
                                   )    SUMNER COUNTY
VS.                                )
                                   )    HON. JANE WHEATCRAFT,
STATE OF TENNESSEE,                )    JUDGE
                                   )
             Appellee.             )    (Post-conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:


DAVID A. DOYLE                          JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter
117 E. Main St.
Gallatin, TN 37066                      ELIZABETH B. MARNEY
                                        Asst. Attorney General
                                        450 James Robertson Pkwy.
                                        Nashville, TN 37243-0493

                                        LAWRENCE RAY WHITLEY
                                        District Attorney General

                                        DEE GAY
                                        Asst. District Attorney General
                                        113 W. Main St.
                                        Gallatin, TN 37066




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The petitioner was convicted of first-degree murder and employing a firearm

during the commission of a felony. These convictions were affirmed on direct appeal.

State v. Gary Thomas Dotson, No. 89-262-III, Sumner County (Tenn. Crim. App. filed

Aug. 3, 1990, at Nashville). He is serving a life sentence plus five years for these

offenses. In December 1992, he filed for post-conviction relief alleging that his lawyers

were ineffective at both his trial and on direct appeal. The court below denied relief,

which he now appeals. He further alleges that the post-conviction court erred when it

denied his motion for forensic and psychological evaluations. Upon our review of both

the record below and the trial record, we affirm.



              The petitioner was initially tried before a jury in January 1989 for the murder

of his mother on August 15, 1988. The jury was unable to reach a verdict resulting in a

mistrial. The petitioner was tried a second time before a jury in May 1989 and convicted.

The petitioner was represented by the same two lawyers at both trials, as well as on his

direct appeal.



              In this appeal, the petitioner contends that his lawyers were ineffective at

his second trial in the following ways:

              1. Failing to object to the “State's impermissible use of [his]
              post-Miranda silence”;

              2. Failing to object to the State's question to the arresting
              officer whether the petitioner was in a state of shock when he
              was apprehended;

              3. Failing to object, ask for a curative instruction, and/or move
              for a mistrial in response to the State asking the petitioner
              whether he had threatened to kill his mother, in contravention
              of an earlier court ruling;



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              4. Needlessly limiting their questions to the petitioner about
              his mother's prior violent acts to the two to three year period
              preceding her death;

              5. Failing to introduce proof of the victim's prior violent act
              toward a neighbor;

              6. Failing to request jury instructions on self-defense and
              defense of others;

              7. Arguing inconsistent theories as to why the petitioner killed
              his mother;

              8. Failing to call certain witnesses;

              9. Failing to offer medical proof as to the petitioner's knee
              problems;

              10. Failing to make objections to portions of the State's
              closing argumentment; and

              11. Failing to object to certain questions the State asked him
              and another witness.

With respect to counsels' presentation of his direct appeal, the petitioner argues that his

lawyers were ineffective in failing to contest the sufficiency of the evidence and the trial

court's denial of his motion for a forensic evaluation.



              “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his [or her] petition by a preponderance of the evidence.”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual

findings of the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).



              This Court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation,

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to



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have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.

1980).



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by his attorneys are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



              After hearing two days of proof, during which the petitioner and both of his

lawyers, among others, testified, the court below denied post-conviction relief. In an eight

page memorandum opinion containing detailed findings of fact and conclusions of law,

the court below determined that “counsel in the instant case was effective, competent

and zealous in its defense of the Petitioner through the trial and appellate process.” We

agree. The petitioner's allegations against his lawyers are based, by and large, on

strategy calls. Our review of the transcripts of the second trial and the post-conviction

hearing convinces us that trial counsel acted competently in their representation of the

petitioner at trial and that their strategic decisions were informed ones and based on

adequate preparation. Furthermore, to the extent that any of trial counsels' actions or

omissions did fall below the level of competent representation as alleged by the

petitioner, we are confident that the result of the petitioner's trial was unaffected thereby.



                                              4
This issue is without merit.



                   We also agree with the court below that the petitioner's legal representation

on direct appeal was within constitutional parameters. Counsel made a specific decision

to not raise the sufficiency issue, which we will not second-guess. Moreover, we are

convinced that, had the issue been raised, this Court would have found it without merit.

Counsel also made a specific decision to not appeal the trial court's denial of their motion

for a forensic evaluation of the petitioner at State expense. When questioned about their

decision on this matter at the post-conviction hearing, one of the petitioner's lawyers

testified that, “Given the status of the record, the status of the law at that time, as I

understood it, I think we made a conscious decision not to pursue the denial of our

request for the forensic evaluation, based on other issues being perceived as more likely

to succeed.” This was a valid strategy decision at the time. It was not until 1995 that our

Supreme Court decided that “when a defendant in a non-capital case demonstrates to

the trial court . . . that his sanity at the time of the offense is to be a significant factor at

trial, the federal constitution, at a minimum, requires the State to provide the defendant

access to a competent, independent psychiatrist who will conduct an appropriate

examination and assist in evaluation, preparation, and presentation of the defense.”

State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995). This decision applied the United

States Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68 (1985),1 to non-capital

cases. Prior to that time, this Court had, in dicta, indicated doubt about the application

of Ake to non-capital cases. See, e.g., State v. Lambert, 741 S.W.2d 127, 131 (Tenn.

Crim. App. 1987). Given the state of the law as it existed in 1989 and 1990, then, we

hold that defense counsel was not ineffective in making the strategic decision to not

         1
            Ake was a capital case in which the Supreme Court held that “[W]hen a defendant
demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at
trial, th e Sta te m ust, a t a m inim um , ass ure th e def end ant a cce ss to a com pete nt ps ychia trist w ho w ill
conduct an appropriate examination and assist in evaluation, preparation, and presentation of the
defense.” 470 U.S. at 83.

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appeal this particular ruling by the trial court. This issue is without merit.



               The petitioner next contends that the court below erred in denying his

motion in this proceeding for forensic and psychological evaluations. We disagree. Our

Supreme Court has held that “the state is not required to provide expert assistance to

indigent non-capital post-conviction petitioners.” Davis v. State, 912 S.W.2d 689, 696-97

(Tenn. 1995). This issue is therefore without merit.



               Although not set forth as a separate issue, the petitioner also complains in

his brief about the trial court's denial of his motion for a transcript of the first trial. He

notes, however, that “[t]rial counsel argued this issue on direct appeal and the appellate

Court found same to be without merit.” Accordingly, this issue has been previously

determined, T.C.A. § 40-30-112(a) (1990), and we need not consider it further. Similarly,

the petitioner complains about the trial court's instructions to the jury about malice and

its use of the terms “moral certainty” and “let the mind rest easily on the certainty of guilt.”

Because these issues were not raised on the direct appeal, they are waived. T.C.A.

§ 40-30-112(b) (1990).



               The judgment below is affirmed.



                                                    ______________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



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______________________________
DAVID H. WELLES, Judge




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