         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 3, 2003

           DARROW LYNN WILLIAMS v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Tipton County
                            No. 3739    Joseph H. Walker, Judge



                   No. W2002-03150-CCA-R3-PC - Filed December 9, 2003


The petitioner, Darrow Lynn Williams, seeks post-conviction relief from his 2001 second degree
murder conviction. The Tipton County Circuit Court denied post-conviction relief, and now on
appeal, the petitioner claims that his trial counsel was ineffective in failing to prepare and devise a
trial strategy. Because the record supports the lower court’s decision, we affirm the dismissal of the
post-conviction petition.


                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

J. Barney Witherington, IV, Covington, Tennessee, for the Appellant, Darrow Lynn Williams.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Walt Freeland, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

               The petitioner’s conviction was affirmed by this court on November 29, 2001. See
State v. Darrow Lynn Williams, No. W2001-01825-CCA-R3-CD (Tenn. Crim. App., Jackson, Nov.
29, 2001), perm. app. denied (Tenn. 2002). The jury’s second degree murder verdict resulted from
the defendant’s 1999 shooting of his brother-in-law during a party at the victim’s house. Id., slip op.
at 2. Following the verdict, the trial court sentenced the petitioner to serve fifteen years in the
Department of Correction.

                After the petitioner timely filed for post-conviction relief, the post-conviction court
appointed counsel and conducted an evidentiary hearing on November 22, 2002. With respect to the
issues on this appeal, the petitioner testified at the hearing as follows. He met with counsel only
once prior to trial, and the 30-to-60-minute meeting occurred a day or two before trial. The
petitioner testified that counsel informed him that self-defense was not a viable defense theory and
that voluntary intoxication was the most promising defense. The petitioner testified that counsel
failed to challenge the testimony of trial witnesses, including the medical examiner, as to whether
the victim was shot first in the face and then in the chest or vice versa and that counsel failed to
object to other testimony that the petitioner thought was objectionable. On cross-examination, the
petitioner gave a rambling account of how his shooting of the victim was accidental.

                  Trial counsel testified at the evidentiary hearing that he had been engaged in the
practice of criminal law since 1983. He had taken the petitioner’s case over from the public
defender and had spent a “good bit of time” discussing the case with his predecessor counsel.
Counsel said that he anticipated the evidence that was presented in the case, and there were no
significant surprises. Counsel recalled that the state mounted a strong case. Because the shooting
occurred during a family gathering, there were several eyewitnesses to the shooting. They generally
testified at trial that the petitioner pulled the trigger intentionally. There was no issue of identity of
the shooter. Counsel testified that much was accomplished in the initial stages of the case; counsel
was able to persuade the police and the prosecutor not to bring a first degree murder charge. Counsel
testified that he decided not to employ a voluntary intoxication defense because he did not believe
it would have militated against a knowing mens rea, especially in the face of eyewitness testimony
that the petitioner volitionally pulled the trigger twice.

                On cross-examination, counsel testified that the public defender, who served as the
petitioner’s initial counsel, made extensive notes which were available to trial counsel. Counsel
characterized the defense theory as “try[ing] to minimize the proof and obtain the most minimal
sentencing factor we could.” Counsel explained that the defense was somewhat hidebound; the
petitioner had admitted to counsel that he had shot the victim, and there were five to eight
eyewitnesses to the shooting. The state did not utilize all its available witnesses in its case-in-chief
but reserved some witnesses for possible rebuttal testimony. Counsel knew, and explained to the
petitioner, that only the petitioner, by testifying, could insert the claim of accidental shooting.
Counsel testified that the petitioner opted not to testify. Counsel explained that counsel wanted to
try the case rather than plead guilty to second degree murder because of the possibility that the
prosecution might falter or that the jury might return a verdict of a lesser offense. Counsel
discounted the petitioner’s claim that the order in which the shots were fired was a critical issue in
the case.

                The post-conviction court found that the petitioner had “failed to show inadequate
trial preparation or bad trial tactics [or to show that any] deficient performance was prejudicial.” The
court dismissed the post-conviction relief petition, and the petitioner timely appealed.

                Although a number of claims of ineffective assistance of counsel and trial error were
raised in the petition and alluded to in the evidentiary hearing, the petitioner on appeal only raises
the issue of counsel’s ineffectiveness in failing to prepare and devise a strategy for trial. Essentially,
the petitioner posits that trial counsel was so relieved that the charge had been reduced from first


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degree to second degree murder that he basically abdicated his duty to defend the petitioner against
the lesser charge.

                 The Tennessee Post-Conviction Procedure Act authorizes the filing of a single
petition, see Tenn. Code Ann. § 40-30-102(c) (2003), to seek relief from a conviction or sentence
that is void or voidable because of the abridgement of any state or federal constitutional right, id. §
40-30-103 (2003). The post-conviction petitioner bears the burden of proving the allegations of fact
by clear and convincing evidence. Id. § 40-30-110(f) (2003). On appeal, a post-conviction court’s
findings of fact are conclusive unless the evidence preponderates against them, and the appellate
court will neither re-weigh the evidence nor evaluate the credibility of witnesses. An appellate
court's review of a question of law or a mixed question of law and fact, such as an ineffective
assistance of counsel claim, however, is reviewed de novo with no presumption of correctness.
Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002)

                To establish an abridgement of the right to the effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution, the claimant must show both that counsel's performance was deficient and
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct.
2052, 2067 (1984); Nichols, 90 S.W.3d at 586. Deficient performance of counsel equates to “acts
or omissions [that] were so serious that they fell below an objective standard of reasonableness under
prevailing professional norms.” Nichols, 90 S.W.3d at 587. The court reviewing counsel’s
performance not only views the claimed deficiency from counsel’s perspective at the time of the
alleged acts or omissions, but it also indulges “a heavy measure of deference to counsel’s
judgments.” Id.; State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). To establish that deficient
performance resulted in prejudice, the claimant is required to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The claimant “must establish that the
deficiency of counsel was of such a degree that it deprived the defendant of a fair trial and called into
question the reliability of the outcome.” Nichols, 90 S.W.3d at 587.

                  Having reviewed the facts and the applicable principles of law, we must agree with
the trial court that the petitioner failed to establish either deficient performance of counsel or that he
was in any way prejudiced by counsel’s assistance. The state had a very strong case, and the state’s
election to charge the petitioner with second degree and not first degree murder effectively
diminished the efficacy of a meaningful state-of-mind defense. Because there was no issue of
identity, the defense was relegated to going to trial with nothing to lose and hoping for the best.
Counsel performed well under the circumstances, and we cannot fault his actions and tactics in
pursuing a trial in the hopes of jury dispensations. The evidence presented at the evidentiary hearing
demonstrated no deficiency of performance and no prejudice.

                Accordingly, the denial of post-conviction relief is affirmed.



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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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