         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 17, 2005

             DONALD RAY EADY, JR. v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Bradley County
                           No. M-03-220 Carroll L. Ross, Judge



                         No. E2004-02396-CCA-R3-PC - July 29, 2005


The petitioner was convicted of second degree murder in July of 1998. He appealed his conviction
to this Court, and we affirmed his conviction. State v. Donald R. Eady, Jr., E2000-01152-CCA-R3-
CD, 2001 WL 1543472 (Tenn. Crim. App., at Knoxville, Dec. 4, 2001), perm. app. denied, (Tenn.
May 6, 2002). The petitioner then filed a petition for post-conviction relief. The post-conviction
court denied his petition. He appeals to this Court solely on the issue of ineffective assistance of
counsel. We affirm the judgment of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Richard Elliston, Cleveland, Tennessee, for the appellant, Donald Ray Eady, Jr..

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; Jerry
N. Estes, District Attorney General; Shari Tayloe-Young, Assistant District Attorneys General, for
the appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

       The post-conviction court’s recitation of the underlying facts is as follows:

       During the late evening hours of October 25, 1997, Tracey Green and Curtis Cronk
       were returning from a bar in Polk County to their homes in Bradley County. Though
       Cronk was a married man, he and Green were seeing each other and had gone to the
       bar with another mutual friend.
                They stopped on the side of a road in Bradley County to discuss the future of
       their relationship. A car driven by one Michael Shelton and in which the [petitioner]
       was a passenger passed them, stopped, and then backed up, allegedly to see if they
       needed any assistance.

              While Shelton was backing up, he backed into the vehicle containing Green
       and Cronk. An argument ensued, during which heated words were exchanged by
       both sides. [Petitioner] pulled a handgun from his back pocket and shot Cronk.
       Cronk died shortly thereafter as a result of the wounds, and the [petitioner] was
       charged with homicide.


       The petitioner was indicted for one (1) count of second degree murder in November of 1997.
He was tried in July of 1998 by a jury and was convicted of the indicted offense. The trial court
sentenced the petitioner to twenty-five (25) years as a Range I standard offender. The petitioner
appealed his conviction to this Court on a number of grounds. We affirmed his conviction in an
opinion filed December 4, 2001, and the Tennessee Supreme Court denied the petitioner’s
application for permission to appeal on May 6, 2002. State v. Donald R. Eady, Jr., E2000-01152-
CCA-R3-CD, 2001 WL 1543472 (Tenn. Crim. App., at Knoxville, Dec. 4, 2001), perm. app. denied,
(Tenn. May 6, 2002).

        The petitioner then filed a petition for post-conviction relief on February 24, 2003. The post-
conviction court held a hearing on this petition on May 21, 2004. The post-conviction court denied
the petition on July 16, 2004. The petitioner filed a notice of appeal on August 13, 2004.

                                            ANALYSIS

        The petitioner’s sole issue on appeal is whether the post-conviction court erred in denying
his petition for post-conviction relief based on the ineffective assistance of counsel. The petitioner
argues that his trial counsel was ineffective because he did not subpoena 911 emergency tapes of the
incident leading to his arrest and conviction for second degree murder.

        The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the court’s findings unless the evidence in the record preponderates against those
findings. See 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 re-evaluate the evidence, nor
substitute its inferences for those drawn by the post-conviction court. See 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. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).



                                                 -2-
        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 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 basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

         Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not second-guess a
reasonably-based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. See id. However, such deference to the
tactical decisions of counsel applies only if counsel makes those decisions after adequate preparation
for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       The petitioner argues on appeal that his trial counsel’s failure to subpoena the 911 emergency
tape was indeed ineffective assistance of counsel. He argues that the 911 tape would have
demonstrated that Tracey Green was squatting beside the victim at the time of the arrival of the gold
minivan, whose driver placed the 911 call, instead of running from a nearby building. The petitioner
believes that he should have been afforded the opportunity to demonstrate a discrepancy of such
magnitude.

       In the post-conviction court’s order denying the petition for post-conviction relief, the court
made the following findings:


               This petition in this cause was filed by the petitioner, it seems, more from
       boredom than from any genuine belief on his part that a cause for Post Conviction
       Relief really existed. The paucity of proof presented by Petitioner at the hearing in
       this cause failed to offer even minimal evidence to support many of the claims in his
       petition.


                                                 -3-
                Petitioner complains about the fact that the 911 Tape was not subpoenaed by
        his attorney. While his reasons for this complaint were not exactly clear to the court,
        Petitioner somehow thinks that the tape would have rebutted some of the statements
        made by Green and would have shown her to be a liar.

                 None of the statements complained of, however, had anything to do with the
        actual commission of the crime. Officer David O’Boyle, the first officer on the scene
        after the commission of the crime, testified that Tracey Green was hysterical upon his
        arrival. [See p. 76 of trial transcript.] Any discrepancies that may have existed
        between the testimony of Tracey Green and the contents of the 911 tape could easily
        have been explained by the excited state of the witness.

               It really doesn’t matter if the defendant and his companion were still at the
        scene when the 911 call was made; what does matter is that they fled the scene
        immediately after the shooting, and proof of that fact was clearly in evidence.

                 The other matters complained of by Petitioner regarding the testimony of
        Tracey Green were matters of proof to be resolved by the jury. The Petitioner
        testified at his trial and offered different testimony from that of Tracey Green on
        some of the issues. The jury chose to believe her version of the facts, and there was
        ample evidence to support their decision.

               While the Petitioner makes other vague complaints about the testimony of
        other witnesses, he admits that he can’t think of any specific questions that counsel
        should have asked these witnesses at trial.

                 Petitioner has not met his burden and has failed to show that trial counsel was
        in any way ineffective either in the way he tried the case and any and all allegations
        that trial counsel was ineffective are without merit and provide no grounds on which
        Post Conviction Relief can be granted.


         As stated above, to prove that trial counsel offered ineffective assistance, the petitioner must
prove both that his trial counsel’s performance was deficient and that the deficient performance was
prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Having reviewed
the evidence presented at the post-conviction hearing, we conclude that the petitioner has not proven
that trial counsel’s performance was ineffective or prejudicial.

        Trial counsel testified at the hearing. He stated that he did not remember the petitioner ever
asking him to subpoena the 911 tapes, contrary to the petitioner’s contention. We found no proof by
the petitioner at the hearing to prove that his trial counsel was ineffective. Even if the petitioner had
proven that his trial counsel was ineffective, he is absolutely unable to prove prejudice due to the 911
tape not being introduced into evidence. The post-conviction court stated that it was the petitioner’s


                                                  -4-
contention that Ms. Green’s position next to the defendant instead of running from a building would
demonstrate that she was being untruthful. We agree with the post-conviction court’s finding that
Ms. Green’s position at the time of the 911 call is irrelevant to the defendant’s guilt or innocence.
The call was placed after the shooting and by someone who was not a witness to the shooting. The
discrepancy in Ms. Green’s position at the time of the 911 call is of de minimis importance and
would not have affected the verdict. The petitioner has not shown that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

       We also note that in the petitioner’s direct appeal to this Court, we included the following
statement in our recitation of Ms. Green’s testimony at trial:


       Green stated that after the men left, she attempted to get the victim into her car, but
       was unable to do so because she could not pick him up. She then ran to a nearby
       building, hoping to find a phone, but she could not find anyone at the building.
       Green stated that she returned to the victim, and when she reached him, a car drove
       up. She told the driver to call 911 and then attempted to give the victim CPR.


Eady, 2001 WL 1543472 at *3. This testimony directly correlates with what the petitioner claims
the 911 tape would have shown had it been introduced into evidence.

       The petitioner has not shown that his trial counsel’s performance was both deficient and
prejudicial. We find no reason to grant the petitioner’s petition for post-conviction relief.



                                         CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




                                                -5-
