            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT NASHVILLE
                     Assigned on Briefs December 15, 2004

              JOHNNIE M. TALLEY, III v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Williamson County
                          No. 1199-360    Donald P. Harris, Judge



                       No. M2002-02179-CCA-R3-PC - Filed June 8, 2005


After a bench trial, the Williamson County Criminal Court convicted the petitioner, Johnnie M.
Talley, III, of five counts of making a false report and sentenced him to an effective sentence of eight
years in the Department of Correction (DOC). Subsequently, the petitioner filed a petition for
post-conviction relief, alleging (1) that his counsel was ineffective for failing to have him evaluated
by a psychologist and (2) that he did not knowingly and voluntarily waive his rights to a jury trial
or to testify. After an evidentiary hearing, the post-conviction court dismissed the petition, and the
petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment
of the trial court.



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

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Tony L. Maples, Murfreesboro, Tennessee, and Mark M. Mizell, Franklin, Tennessee, for the
appellant, Johnnie M. Talley, III.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper and Renee W. Turner, Assistant
Attorneys General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

       On appeal, this court stated the following facts:

                               On January 14, June 13, July 1, August 2, and
                        September 8, 1996, defendant placed the 9-1-1 calls
                        giving rise to his convictions. In each case, he
                        claimed injury or a need for assistance. Some of the
                        ailments claimed by defendant included: bleeding
                        from the head; spider bite; heatstroke; back, neck, and
                        chest pains. In each instance, the emergency medical
                        personnel found defendant in no distress and in no
                        need of emergency medical treatment. Per agency
                        policy, however, they transported defendant to the
                        Williamson Medical Center emergency room at his
                        request.

                               In the majority of these visits, emergency
                        room medical records indicate a final diagnosis of
                        toluene inhalation, substance abuse and/or a history of
                        schizophrenia. On July 1, the diagnosis was
                        insomnia.

                                The defense presented expert testimony by
                        Robert N. North, D.Ed., who testified that defendant
                        suffers from Obsessive Compulsive Disorder (OCD).
                        His evaluation of defendant indicated that defendant
                        may have known “down deep” that there was nothing
                        wrong, but that he was driven by a compulsion to call
                        9-1-1 and could not help himself. This proof was
                        deemed inadmissible at the guilt phase of the hearing,
                        but was considered for sentencing purposes.

The trial court found the petitioner guilty of five counts of making a false report, a Class E felony,
and sentenced him as a Range II, multiple offender to an effective sentence of eight years in the
DOC. This court affirmed the petitioner’s convictions. See State v. Johnnie M. Talley, III, No.
01C01-9710-CC-00450, 1998 Tenn. Crim. App. LEXIS 1326 (Nashville, Dec. 30 1998).

        On November 8, 1999, the petitioner filed a petition for post-conviction relief, alleging
numerous grounds of ineffective assistance of counsel at trial. The post-conviction court appointed
counsel to represent the petitioner, and the petitioner filed an amended petition. In the amended
petition, the petitioner alleged that he received the ineffective assistance of counsel because his trial
attorney did not have him psychologically tested for competency and failed to appeal this court’s
affirmation of his convictions to the Tennessee Supreme Court. He also argued that the he did not
knowingly and voluntarily waive his right to a jury trial. The trial court granted the petitioner a
delayed appeal to the supreme court but denied the petitioner relief on all other grounds. On March
4, 2004, the supreme court denied the petitioner’s application for discretionary appeal. See Johnnie
M. Talley, III, v. State, No. M1997-00330-SC-DAT-CD, 2004 Tenn. LEXIS 164 (Nashville, Mar.


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1, 2004).

         At the evidentiary hearing, the petitioner’s trial attorney testified that the petitioner originally
had been charged with nine counts of filing a false report. He said that he discussed the charges with
the petitioner and listened to the 9-1-1 tapes. He related that he was concerned about the petitioner’s
mental state, that the petitioner’s mental state was relevant to the petitioner’s defense, and that he
did not believe the petitioner intended to violate any law. Dr. Robert North had been treating the
petitioner, who had a history of inhaling paint thinner, and had completed a psychological evaluation
of the petitioner in 1997. Counsel testified that he never had trouble communicating with the
petitioner and that he did not believe another psychological evaluation was necessary. He said he
was shocked that the trial court found the petitioner guilty of five counts and “totally shocked” that
the trial court sentenced the petitioner to eight years in the DOC. Counsel testified that he did not
specifically remember talking with the petitioner about the petitioner’s right to a jury trial or his right
to testify. However, he stated that he always discussed these rights with his clients and that it was
a defendant’s ultimate decision to waive the right to a jury trial and the right to testify. He said he
had recommended that the petitioner not testify at trial but that the petitioner could have testified if
he had wanted to.

        On cross-examination, the petitioner’s trial attorney testified that he talked with Dr. North
and that his investigator talked with Dr. John Cain, a psychiatrist, about the petitioner’s case. Dr.
North believed the petitioner suffered from obsessive compulsive disorder (OCD) and counsel filed
a notice of the defense’s intent to introduce expert testimony regarding the petitioner’s mental
disease or defect. However, he said that neither Dr. North nor Dr. Cain believed the petitioner was
incompetent to stand trial or insane at the time of the offenses. Counsel stated that he became
licensed to practice law in Tennessee in 1972 and had tried about three hundred jury trials.

         The petitioner testified that he was thirty-eight years old and had been receiving Social
Security disability payments for his mental condition. He said that he was taking medication during
his bench trial, that he had been under the influence of his medicine, and that Dr. Cain should have
testified for him at trial. The petitioner testified that he waived his right to a jury trial because his
trial attorney told him that “the judge is on your side” and that “this would be the end of it.” He said
that he had wanted a jury trial and that if he had had one, he did not believe he would have served
any time in confinement. Regarding his right to testify, the petitioner said that he was “messed up”
at the time of trial and could not assist his attorney with his defense. On cross-examination, the
petitioner acknowledged that he had many prior convictions, that he had previously had a jury trial,
and that he knew he had a right to a jury trial in this case. He acknowledged that he never asked the
trial court for a jury trial but stated that he trusted his trial attorney’s advice.

        Regarding his claim that he received the ineffective assistance of counsel because his trial
attorney failed to present evidence about his mental condition, the trial court noted that the petitioner
did not have Dr. Cain testify at the evidentiary hearing. It also noted that in a 1997 letter written by
Dr. Cain and introduced into evidence at the hearing, Dr. Cain stated that the petitioner had been
diagnosed with schizophrenia complicated by chronic substance abuse. However, the trial court held


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that neither Dr. North nor Dr. Cain had established a diminished capacity or insanity defense for the
petitioner. Regarding the petitioner’s claim that he did not knowingly and voluntarily waive his right
to a jury trial, the trial court accredited the petitioner’s trial attorney, who testified that he
recommended the petitioner waive his right to a jury trial but that it was the petitioner’s ultimate
decision to do so. The trial court did not address the petitioner’s claim that he did not knowingly and
voluntarily waive his right to testify.

         The petitioner claims that he received the ineffective assistance of counsel because his
attorney failed to have him “examined to determine his competency to stand trial” and because he
did not knowingly or voluntarily waive his rights to a jury trial or to testify. The State claims that
the trial court properly denied post-conviction relief. We agree with the State.

                                            II. Analysis

        In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised
in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
“Evidence is clear and convincing when there is no serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (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 adduced at trial 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.

        On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and
fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the
post-conviction court’s findings of fact are entitled to a presumption of correctness unless the
evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
However, a post-conviction court’s conclusions of law, such as whether counsel’s performance was
deficient or whether that deficiency was prejudicial, are subject to a purely de novo review with no
presumption of correctness. Id.

        When a petitioner seeks post-conviction relief on the basis of 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)).

               Because a petitioner must establish both prongs of the test, a failure
               to prove either deficiency or prejudice provides a sufficient basis to
               deny relief on the ineffective assistance claim. Indeed, a court need
               not address the components in any particular order or even address


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               both if the [petitioner] makes an insufficient showing of one
               component.

Id. at 370.

        To establish constitutionally deficient performance, the petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.
at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that
counsel’s performance was not within “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). On appeal, this court will neither
second guess the tactical and strategic decisions of defense counsel, nor measure the representation
by “20-20 hindsight.” Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). To establish prejudice,
the petitioner must show 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; see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

        As to the petitioner’s claim that he received the ineffective assistance of counsel because his
attorney failed to have him psychologically tested for competency, no mental health experts testified
at the hearing. Without any proof at the hearing as to the petitioner’s competency, he cannot
demonstrate that he was prejudiced by his attorney’s failure to have him evaluated or to call
witnesses to testify on his behalf at trial. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990).

         Regarding the petitioner’s claim that he did not knowingly and voluntarily waive his right
to a jury trial, the petitioner’s attorney testified that he recommended to the petitioner that he waive
a jury trial but that it was the petitioner’s ultimate decision to do so. The trial court accredited the
trial attorney’s testimony. We have viewed a videotape of the petitioner’s trial. The tape shows the
petitioner signing a written waiver to a jury trial. The tape also shows that the trial court asked the
petitioner if he understood that he had an absolute right to a jury trial and that the petitioner
answered, “Yes.” The trial court also asked the petitioner if his waiver was voluntary and if his
attorney had advised him that he was giving up his right to a jury trial. The petitioner answered,
“I’m going along with what my lawyer says.” Finally, the trial court asked the petitioner if any
medications he was taking would affect his ability to think, and the petitioner answered, “I’m
alright.” We do not believe the evidence preponderates against the trial court’s finding that the
petitioner knowingly and voluntarily waived his right to a jury trial.

         Regarding the petitioner’s claim that he did not knowingly and intelligently waive his right
to testify, it is unquestionable that a criminal defendant has a fundamental, constitutional right to
testify at trial. See Momon v. State, 18 S.W.3d 152, 161 (Tenn. 1999). This fundamental right may
only be waived by the defendant himself. Id. “Generally, a right that is fundamental and personal
to the defendant may only be waived if there is evidence in the record demonstrating ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Id. at 161-62 (quoting Johnson v.


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Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). A waiver of this right may not be presumed
by a silent record. Id. at 162.

        The trial in this case occurred prior to Momon, and Momon has no retroactive effect. Id. at
162-63. Therefore, the failure to have the petitioner waive his right to testify on the record is not
determinative of the issue. Although the post-conviction court did not address it, the petitioner’s
trial attorney testified that it was the petitioner’s ultimate decision not to testify, and the
post-conviction court implicitly accredited the testimony of counsel. Moreover, the petitioner never
stated at the hearing that he had wanted to testify or that his attorney had coerced him into waiving
the right to testify. The trial court properly denied the petitioner’s request for post-conviction relief.

                                           III. Conclusion

        Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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