         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs April 13, 2004

                AARON MCFARLAND v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                          No. P-26220    James C. Beasley, Jr., Judge



                       No. W2003-01797-CCA-R3-PC - Filed June 8, 2004


The petitioner, Aaron McFarland, appeals the judgment of the Shelby County Criminal Court
denying his petition for post-conviction relief from his conviction for first degree murder. The
petitioner contends that he was denied effective assistance of counsel. Upon review of the record
and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Aaron McFarland.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        On July 10, 1998, the petitioner was convicted by a jury in the Shelby County Criminal Court
of the murder of Terrell Deon Bullard. He was sentenced to life with the possibility of parole. State
v. Aaron McFarland, No. W1999-01410-CCA-R3-CD, 2000 WL 1154612 (Tenn. Crim. App. at
Jackson, Aug. 4, 2000), perm. to appeal denied, (Tenn. Mar. 12, 2001). On March 11, 2002, the
petitioner filed a pro se petition seeking post-conviction relief. In his petition, the petitioner alleged
that he received ineffective assistance of counsel. Specifically, the petitioner alleged that his trial
counsel failed to adequately investigate whether the petitioner was properly transferred from juvenile
court to criminal court for trial, trial counsel failed to interview witnesses, trial counsel’s failure to
properly evaluate the strength of the State’s case resulted in improper trial strategy, trial counsel
failed to adequately confer with the petitioner about the case, and trial counsel failed to properly
develop the petitioner’s defense.

        Subsequently, the post-conviction court appointed counsel for the petitioner, and an amended
petition was filed. The amended petition raised additional claims regarding ineffective assistance
of counsel. Specifically, the petition alleged that trial counsel failed to file a motion to suppress the
petitioner’s confession, trial counsel did not properly cross-examine the State’s witnesses, and trial
counsel failed to “use the fact that a gun powder residue test was done on [the] [p]etitioner
immediately after the shooting.”1

        At the evidentiary hearing, the petitioner testified that he was twenty-one years old and had
left school during the seventh grade. He said that he could read “a little bit” and had someone help
prepare his post-conviction petition. He could not remember his trial counsel’s name but was able
to identify her in the courtroom. As to his claim regarding trial counsel’s ineffectiveness, the
petitioner stated,

                  On my gun test, it said my gun test had got lost. I think she could
                  have did a little more, you know what I’m saying, telling them that - -
                  telling me a little more about and saying a little more about how did
                  it get lost? How did it come up to get lost? How could it get messed
                  up?

Essentially, the petitioner complained that trial counsel should have emphasized that the test was lost
and that the results of the test would have been beneficial to him.

          The petitioner further complained that trial counsel did not talk with witnesses and failed to
adequately cross-examine witnesses regarding inconsistencies in their statements and their testimony
at trial. However, he was unable to remember which witnesses were not adequately cross-examined.
The petitioner recalled that trial counsel spent about “five hours total” discussing the case with him.
They did not discuss trial strategy or any potential defenses. The petitioner alleged that trial counsel
could have presented the circumstances surrounding his confession in a more favorable way.

        Trial counsel testified that she was appointed to represent the petitioner. At the time of her
appointment, she had been with the Public Defender’s Office for approximately ten years. She had
been involved in numerous trials, including fifteen to twenty murder trials. Trial counsel recalled
that she visited the petitioner seven times in jail and numerous times before court. Additionally, she
met with the petitioner and his grandparents. They also communicated through letters and by
telephone.




         1
          The allegation that trial counsel failed to file a motion to suppress the petitioner’s confession was abandoned
following testimony at the evidentiary hearing that a suppression hearing was held prior to trial.

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        Trial counsel discussed with the petitioner the State’s proof and possible defenses. The
petitioner had confessed to police that he had committed the murder. He explained that he agreed
to confess upon the advice of his grandparents and because he thought he would be allowed to go
home.

        Accordingly, trial counsel filed a motion to suppress the petitioner’s confession. The
petitioner and his grandparents testified at the hearing on the motion, recounting the circumstances
surrounding the confession. The trial court denied the petitioner’s motion and allowed the
confession to be admitted at trial. As a result of the trial court’s decision, trial counsel and the
petitioner decided that the petitioner should testify at trial in order to explain the reasons for the
confession.

        The gunpowder residue tests results were critical to the petitioner’s defense strategy. Trial
counsel was told that the Tennessee Bureau of Investigation was unable to test for gunpowder
residue because of contamination. Therefore, at trial, counsel called the officer who attempted the
testing to explain the procedure and why he was unable to test for gunpowder residue in the
petitioner’s case. Trial counsel’s strategy was to emphasize the problems with the testing and “let
the jury make their determination hoping that they would see [it]in the light favorable to [the
petitioner] . . . .”

         Trial counsel recalled that there were seven witnesses to the offense. Four of the witnesses
saw the shooting, and the other three witnesses saw a person dressed similarly to the petitioner. Trial
counsel reviewed their statements to police, and her investigator spoke with the witnesses. At trial,
several witnesses gave testimony inconsistent with their initial statements. Trial counsel pointed out
the inconsistencies to the jury during her cross-examination of the witnesses. Trial counsel recalled
that the petitioner named another individual as the shooter and asked that this individual be called
to testify. The individual had an alibi and denied he was involved. Trial counsel did not call the
individual, fearing that his testimony would be more damaging than beneficial.

         Trial counsel stated that the petitioner’s defense was three-fold. First, she attempted to
disparage the confession. After the motion to suppress was denied, the strategy shifted to an
emphasis on the contaminated gunshot residue testing in an attempt to cast doubt on the police
department. Finally, she focused on the inconsistencies in the initial statements of the witnesses and
their testimony at trial.

        At the conclusion of the evidentiary hearing, the post-conviction court made findings of fact
and conclusions of law and entered an order denying the petitioner relief. The post-conviction court
referenced the inconsistencies in the testimony of the petitioner and trial counsel, accrediting the
testimony of trial counsel. The post-conviction court found that trial counsel fully investigated the
petitioner’s case and was prepared for trial. Additionally, the post-conviction court found that trial
counsel thoroughly examined the witnesses and communicated with the petitioner regarding trial
strategy and the defenses available to him. The post-conviction court concluded that trial counsel
had provided effective representation, noting that “the facts in the case are what caused [the


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petitioner] to be convicted and that [trial counsel] did everything she could to adequately defend him
under the guidelines of the law.”

                                             II. Analysis

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f) (2003). “‘Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence are to be
resolved by the post-conviction court as the trier of fact. Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight of a jury
verdict, with such findings being conclusive on appeal absent a showing that the evidence in the
record preponderates against those findings. Id. at 578.

       A claim of ineffective assistance of counsel is a mixed question of law and fact. State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of fact
de novo with a presumption that those findings are correct. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely de
novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

       Initially, we note that Rule 27 of the Tennessee Rules of Appellate Procedure provides that

               [t]he brief of the appellant shall contain . . . [a]n argument, which
               may be preceded by a summary of argument, setting forth the
               contentions of the appellant with respect to the issues presented, and
               the reasons therefor, including the reasons why the contentions
               require appellate review, with citations to the authorities and
               appropriate references to the record (which may be quoted verbatim)
               relied on.

Tenn. R. App. P. 27 (a)(7). “Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App.
R. 10(b). In the instant case, the petitioner’s argument consists of three general allegations regarding

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trial counsel’s ineffectiveness but includes no explanation of how counsel was ineffective or how
the petitioner was prejudiced by counsel’s actions. The brief is inadequate and this court could
consider those issues waived. Nevertheless, we see no reason to disturb the post-conviction court’s
determination that the petitioner was afforded effective assistance of counsel.

          The petitioner complains that trial counsel failed to adequately investigate and prepare for
trial, failed to interview witnesses, did not properly evaluate the State’s case, and failed to meet with
the petitioner to develop a defense. First, we note that when a petitioner contends that trial counsel
failed to discover, interview, or present witnesses in support of his defense, the petitioner should
present these witnesses at the evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). A petitioner is not entitled to relief on this ground “unless he can produce a material
witness who (a) could have been found by a reasonable investigation and (b) would have testified
favorably in support of his defense if called.” Id. at 758. At the evidentiary hearing, the petitioner
failed to produce any witnesses in support of his claim.

        The petitioner had the burden to prove the factual allegations set forth in his petition by clear
and convincing evidence. Tenn. Code Ann. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless the evidence in the record preponderates against those findings.
Henley, 960 S.W.2d at 578.

       The post-conviction court found that trial counsel had fully investigated the petitioner’s case,
adequately prepared for trial, and communicated with the petitioner regarding trial strategy and
defenses. The record does not preponderate against those findings.

                                           III. Conclusion

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




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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