                IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                               AT JACKSON

                            JULY SESSION, 1998
                                                       FILED
                                                       November 9, 1998

                                                      Cecil Crowson, Jr.
THOMAS EDWARD MURPHY, JR.,        )                    Appellate C ourt Clerk
                                  )
      Petitioner,                 )   C.C.A. NO. 02C01-9710-CC-00378
                                  )
VS.                               )   FAYETTE COUNTY
                                  )
STATE OF TENNESSEE,               )   HONORABLE JON KERRY BLACKWOOD
                                  )
      Respondent.                 )   (Post-Conviction: Second Degree Murder)




For the Petitioner                       For the Respondent

Andrew S. Johnston                       John Knox Walkup
108 E. Court Square                      Attorney General and Reporter
Somerville, TN 38068
                                         Clinton J. Morgan
                                         Assistant Attorney General
                                         425 Fifth Avenue South
                                         Nashville, TN 37243-0493

                                         Elizabeth T. Rice
                                         District Attorney General
                                         302 Market Street
                                         Somerville, TN 38068-1600


OPINION FILED:____________________


AFFIRMED


ROBERT W. WEDEMEYER, SPECIAL JUDGE
                                                      OPINION



         The petitioner appeals the trial court’s dismissal of his petition for post-conviction

relief. The petitioner was originally convicted of the second degree murder of his daughter

and was sentenced to eighteen years imprisonment. State v. Thomas Edward Murphy, Jr.,

No. 02C01-9502-CC-00032 (Tenn. Crim. App., June 28, 1996), perm. to app. denied,

(Tenn., Dec. 23, 1996). The petition filed below challenges various aspects of counsel’s

effectiveness, prosecutorial misconduct and trial court errors. After conducting a hearing,

the post-conviction court found that the petitioner received effective assistance of counsel.

In the order outlining its findings and conclusions, the trial court did not specifically address

the other claims raised in the petition. On appeal, however, the petitioner only raises the

following two issues for our review:


         1) Whether the petitioner was denied due process by the trial court’s failure
            to instruct the jury on the lesser charge of voluntary manslaughter; and

         2) Whether the petitioner received effective assistance of counsel.


         After reviewing the record before the Court, including the petition filed below, we

affirm the judgment of the trial court dismissing the petitioner’s post-conviction petition.



                                                    ANALYSIS

1)       Initially, we note that the petitioner challenges for the first time on appeal the trial

court’s failure to instruct on the lesser charge, as well as counsel’s failure to raise this

alleged error during direct appeal. The petitioner did not raise these issues in his written

petition for post-conviction relief.1 Since the post-conviction court did not consider the

merits of these claims, this Court is precluded from reviewing them on appeal. See Butler

v. State, 789 S.W.2d 898, 902 (Tenn. 1990); Brown v. State, 928 S.W.2d 453, 457 (Tenn.




         1
           The pe titioner elicited tes timony re garding couns el’s failure to ap peal the trial co urt’s refus al to
instruct on voluntary manslaughter. Counsel also referenced this alleged error in his argument to the
judge after the hearing. However, this particular claim is not contained in the written petition. T.C.A. § 40-
30-210 (c) spec ifically provides th at “[p]roof u pon the p etitioner’s claim or claim s for relief s hall be limited to
evidence of the allegations of fact in the petition.” Since neither the original pro se petition nor the
amended petition filed by counsel mentions this alleged error, the post-conviction court was precluded
from conside ring it.

                                                           2
Crim. App. 1996). Accordingly, these issues have been waived.2 T.C.A. § 40-30-206(g);

T.R.A.P. 36(a). See also Long v. State, 510 S.W.2d 83, 85 (Tenn. Crim. App. 1974) (“[a]

post-conviction petition must necessarily rest upon and be determined by the factual

allegations it contains”).



        Additionally, we find that petitioner’s challenge to counsel’s failure to request

individual or sequestered voir dire has been previously determined. T.C.A. § 40-30-206(h).

On the direct appeal of his conviction, the petitioner claimed that a newspaper article

discussing this case which appeared on the front page of a local newspaper the morning

the trial began prejudiced his right to a fair trial. During collective voir dire, several

prospective jurors stated they read either the headlines or the article that morning.

Counsel, however, did not request individual or sequestered voir dire. Some of these

jurors ultimately served on the jury in this case. Despite the fact that the issue was raised

for the first time on direct appeal, this Court reviewed the merits of the petitioner’s claim.

Finding that the trial court did not abuse its discretion, “we [found] that the jury was not

prejudiced by collective voir dire and that the trial court did not err in denying the

defendant’s motion for a mistrial.” State v. Thomas Edward Murphy, Jr., No. 02C01-9502-

CC-00032 (Tenn. Crim. App., June 28, 1996). Accordingly, since a panel of this Court has

already determined that the validity of the trial in this case was not undermined by the voir

dire as conducted, any challenge to counsel’s performance in this instance is without merit.



2)      The petitioner also claims he was denied the effective assistance of counsel when

his attorney: 1) failed to hire expert witnesses; 2) failed to adequately impeach a witness

for the state; 3) failed to emphasize an alleged discrepancy in the state’s time line of the

crime; and 4) failed to emphasize the apparent differences in the victim’s clothing between

when she was last seen and found.



        The proof at the post-conviction hearing consisted solely of the testimony of the



        2
          Any claim of error on part of the trial court outside the scope of an ineffective assistance of
counsel claim would also be considered waived because it was not raised on direct appeal. T.C.A. 40-30-
206(g).

                                                    3
petitioner and his trial counsel. After hearing the testimony of both witnesses, the post-

conviction court entered the following findings and conclusions:



               Petitioner testified that an expert witness could have established that
       the nine-millimeter pistol traced to him was not the murder weapon. He
       further asserted that a DNA expert could have testified that a hair sample
       found near the victim’s body was not his. He complained that counsel did
       not point out that the State’s pathologist could not establish the time of death
       and that petitioner was out of state after December 28. Notwithstanding this
       uncertainty, the State was allowed to argue that the incident took place on
       December 23. Petitioner claims counsel was deficient in bringing to the
       jury’s attention the numerous inconsistent statements made by Doug
       Murphy. He also testified that a witness referred to a prior arrest of
       petitioner. He claimed counsel’s failure to seek an interlocutory appeal after
       the denial of a mistrial motion was prejudicial. He stated he received a letter
       after the trial that brought to his attention that the victim was wearing different
       clothes than the clothing she was wearing when the petitioner last saw the
       victim. Counsel’s failure to point this out was prejudicial. He stated he
       wanted to testify. Had he testified, he believed he could have shown his
       innocence. Lastly, he believed counsel was not prepared.

               Ms. McCoy Johnson [trial counsel] pointed out that no expert
       conclusively established that the nine-millimeter pistol was the murder
       weapon nor that the hair sample was traceable to the petitioner. Secondly,
       funds for experts were limited. Lastly, had an expert been able to prove that
       the gun and hair were traceable to the petitioner, this information would have
       to be revealed to the State. Ms. McCoy Johnson testified that she did point
       out the fact that the petitioner was out of state after December 28, and that
       no definite time was established for the time of death. She also pointed out
       the contradictory statements of Doug Murphy. She further testified that an
       interlocutory appeal was inappropriate for a denial of a mistrial. She further
       was unaware of any letter received by petitioner regarding the victim’s
       clothing. She also stated that the petitioner was aware of the right to testify.
       After his self-serving statement was read to the jury as part of the State’s
       proof, there was no need for him to testify. However, the petitioner made the
       decision not to testify. Lastly, she testified that she and her staff were
       adequately prepared.

              WHEREFORE, THE COURT CONCLUDES THAT:

             1. Petitioner has failed to show how any of these alleged errors by
       counsel would have changed the result.

             2. The Court finds that petitioner was not denied effective assistance
       of counsel.


       In post-conviction relief proceedings, the petitioner has the burden of proving the

allegations in his petition by clear and convincing evidence. T.C.A. § 40-30-210(f). It has

long been established that the trial court’s findings of fact and conclusions of law in post-

conviction suits are afforded the weight of a jury verdict. See e.g., Caruthers v. State, 814

S.W.2d 64, 67 (Tenn. Crim. App. 1991). The trial court’s findings of fact and conclusions



                                               4
of law are conclusive on appeal unless the appellate court finds that the evidence

preponderates against the findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

Furthermore, this Court may not reweigh or reevaluate the evidence or substitute its

inferences for those drawn by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990).



       The Court’s review of the post-conviction court’s judgment is governed by several

well-established principles. In order for the petitioner to be granted relief on grounds of

ineffective counsel, he must establish that the advice given or the services rendered were

not within the range of competence demanded of attorneys in criminal cases and that, but

for his counsel's deficient performance, the result of his trial would have likely been

different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984);

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).            Furthermore, this Court may not

second-guess the tactical and strategic choices made by trial counsel unless those choices

were uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). Trial counsel may not be deemed ineffective merely because a different

procedure or strategy might have produced a different result. Williams v. State, 599

S.W.2d 276 (Tenn. Crim. App. 1980). The reviewing courts must indulge a strong

presumption that the conduct of counsel falls within the range of reasonable professional

assistance. Strickland, 466 U.S. at 690.



       The presumption is that the attorney rendered effective assistance, and the burden

is on the petitioner to prove both that the assistance was ineffective and that such

ineffectiveness caused the petitioner to suffer prejudice. Hartman v. State, 896 S.W.2d

94, 104 (Tenn. 1995). In a post-conviction proceeding, a petitioner's uncorroborated

testimony is insufficient to carry this burden of proof. State v. Kerley, 820 S.W.2d 753, 757

(Tenn. Crim. App. 1991). Similarly, the petitioner cannot demonstrate prejudice resulting

from counsel’s failure to hire experts to challenge the physical evidence unless he can

produce material witnesses who would have testified favorably in his behalf. Black v.

State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990).



                                             5
       The post-conviction judge resolved conflicting testimony in favor of the petitioner's

trial counsel and found that he received adequate representation under the law. We agree.

There is no evidence in the record to preponderate against the findings and conclusions

of the post-conviction court.



       Accordingly, we affirm the dismissal of the petition for post-conviction relief.




                                   _______________________________________
                                   ROBERT W. WEDEMEYER, SPECIAL JUDGE



CONCUR:




____________________________
JOE G. RILEY, JUDGE




____________________________
J. CURWOOD WITT, JR., JUDGE




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