         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2001

              RICHARD BURT MCKEE v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Cheatham County
                            No. 11988    Robert E. Burch, Judge



                     No. M2000-2866-CCA-R3-PC - Filed August 31, 2001


The Defendant was convicted by a jury of first degree premeditated murder and sentenced to life
imprisonment without parole. His conviction and sentence were affirmed on direct appeal. See State
v. Richard Burt McKee, No. 01C01-9606-CC-00278, 1998 WL 155558, at *1 (Tenn. Crim. App.,
Nashville, Mar. 31, 1998). The Defendant filed for post-conviction relief in December 1998 alleging
that he received ineffective assistance of counsel at trial and on appeal and that juror misconduct
during deliberations entitles him to a new trial. The post-conviction court denied relief after an
evidentiary hearing. The Defendant now appeals as of right. Finding no merit in the Defendant’s
contentions, we affirm the post-conviction court’s judgment.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Gary Eisenberg, Pleasant View, Tennessee, for the appellant, Richard Burt McKee.

Paul G. Summers, District Attorney General; John H. Bledsoe, Assistant District Attorney General;
Dan Alsobrooks, District Attorney General; and Robert Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

         At the evidentiary hearing on this matter, the post-conviction court heard testimony from the
Defendant, his trial and appellate attorneys, the prosecutor, a jail trusty, and one of the Defendant’s
friends who had observed the Defendant’s trial. The gist of the Defendant’s complaints about his
trial attorney, Noel Reese Bagwell, Jr., is that Mr. Bagwell failed to prepare adequately for trial,
failed to call certain witnesses, failed to introduce pictures of the crime scene, allowed the
Defendant’s pretrial statement to be introduced, and did not allow the Defendant to testify. The post-
conviction court issued a comprehensive Memorandum Opinion addressing the Defendant’s
contentions and found that the Defendant failed to prove by clear and convincing evidence either that
Mr. Bagwell’s representation was deficient or that the Defendant suffered prejudice as a result.
Accordingly, the post-conviction court found no merit in the Defendant’s contentions regarding
ineffective assistance of counsel at trial.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. Tenn. Code Ann. § 40-30-
210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon, 18 S.W.3d at 156; Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against those findings. Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79.

         Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This
right to counsel includes the right to effective counsel. See Strickland v. Washington, 466 U.S. 668,
686 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the
burden of showing that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the
defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns, 6
S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had
reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.




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       The record fully supports the post-conviction court’s findings of fact and conclusions of law
with respect to the Defendant’s claims of ineffective assistance of counsel at trial. A more
comprehensive analysis would serve no purpose. This issue is without merit.

       With regard to appellate counsel, the Defendant complains that his appellate counsel, Mr.
Gregory D. Smith, failed to raise on direct appeal an issue regarding juror misconduct, thereby
implicitly conceding that this was an issue which could have been raised prior to this proceeding.
Ricky Felts, a jail trusty, testified that during the Defendant’s trial, he overheard two male jurors
speaking to each other outside the restroom during a break. Felts testified:
               I heard two men talking. And they said that they wanted to hurry up
               the hearing and get the trial over with and find the SOB guilty so they
               could go on and get what they had to do done.

Felts testified that he passed this information on to the Defendant. The Defendant testified that the
statement occurred during deliberations and Felts told him about it that night at the jail. The
Defendant also testified that he told his trial attorney about it.

       Mr. Bagwell testified that he was informed of no such conversation during trial and stated
unequivocally that, had he been so informed, he would have brought it to the trial court’s attention.
Similarly, Mr. Smith had no recollection of being informed of such an incident and therefore did not
include it in the appeal.1 The post-conviction court found that the Defendant failed to prove that his
appellate counsel performed inadequately, and we agree. This issue is without merit.

        Finally, the Defendant contends that he is entitled to a new trial because of the alleged juror
misconduct described above. Initially, we note that this issue is waived because it could have been
raised on direct appeal. See Tenn. Code Ann. § 40-30-206(g). Moreover, this issue is without merit.
In analyzing this allegation, the post-conviction court found:
                This conversation was not a deliberation by these two jurors (who
                were apparently in agreement upon their individual verdicts of guilt)
                but an expression of frustration at the failure of other jurors (who
                were not present during this conversation) to agree with their point of
                view. Since the two jurors were obviously in agreement before the
                reported conversation, no deliberations occurred since there was
                nothing to deliberate.

We agree with the post-conviction court that the Defendant’s allegations of juror misconduct
entitling him to a new trial are “not sustained by the proof.” We deem the alleged conversation to
be a variety of “[i]nternal influences that are not grounds to overturn a verdict.” Caldararo v.
Vanderbilt University, 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990). Such internal influences include


         1
           While Mr. Smith conceded the possibility that he could have missed the issue during his review of the trial
transcript, there is no proof in the record before us that this issue was raised at trial. The trial transcript was not included
in the record on appe al. More over, M r. Bagwell ha d no reco llection of raising the issue to the trial co urt.

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“(1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3) a juror’s
personal experiences not directly related to the litigation, and (4) a juror’s subjective thoughts, fears
and emotions.” Id. This issue is without merit.

        The judgment of the post-conviction court is accordingly affirmed.


                                                ___________________________________
                                                DAVID H. WELLES, JUDGE




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