           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                               Assigned on Briefs November 15, 2000

                 ARCHIE LEE ROBERTS v. STATE OF TENNESSEE

                  Appeal as of Right from the Criminal Court for DeKalb County
                               No. 7524F    Leon Burns, Jr., Judge



                         No. M1999-02462-CCA-R3-PC - Filed April 12, 2001


The petitioner, Archie Lee Roberts, was found guilty by a jury in the DeKalb County Criminal Court
of one count of first degree murder, for which he received a life sentence, and one count of attempted
first degree murder, for which he received a sentence of twenty years incarceration. On direct
appeal, we affirmed the petitioner’s convictions. Subsequently, the petitioner filed a petition for
post-conviction relief alleging ineffective assistance of counsel, which petition was denied by the
post-conviction court. On appeal, the petitioner raises the following issue for our review: whether
the post-conviction court erred in denying his claim for relief. 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 JERRY
L. SMITH, JJ., joined.

Tecia Puckett Pryor (post-conviction), Smithville, Tennessee, and Terry D. Dycus (trial and direct
appeal), Cookeville, Tennessee, for the appellant, Archie Lee Roberts.

Michael E. Moore, Solicitor General, Clinton J. Morgan, Counsel for the State, William Edward
Gibson, District Attorney General, and William M. Locke, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                                      OPINION

                                   I. Factual Background
              On April 28, 1993, while riding around and drinking together, the petitioner, Archie
Lee Roberts, got into an argument with Eric Graham and Shane Orlando.1 The petitioner pulled a


       1
           We glea ned the fa cts underlying the petitioner’s convictions from our opinion concerning this case on direct
                                                                                                           (continu ed...)
knife on Orlando, but Orlando was able to take the knife from the petitioner. Upon arriving at the
petitioner’s residence, the petitioner requested the return of his knife. Immediately after Orlando
returned the knife, the petitioner stabbed Orlando in the stomach causing a severe wound.

                The petitioner then entered his house and kicked in his mother’s locked bedroom
door. He obtained a 12-gauge shotgun and shotgun shells, and he loaded the gun. Once outside, the
petitioner resisted his stepbrother’s attempts to restrain him, and he shot Graham in the head and in
the shoulder. The petitioner then shot at Orlando but did not hit him. After Orlando begged the
petitioner to permit him to get medical help for Graham, the petitioner allowed Orlando to leave with
Graham. The petitioner subsequently called 911 and made a coherent request for assistance. He also
bragged to the neighbors about “kill[ing] a boy that was in the yard.” Graham died as a result of his
head wound and Orlando was hospitalized for nine days.

               The petitioner was found guilty by a jury of one count of first degree murder and one
count of attempted first degree murder. Due to the petitioner’s youth, the State was unable to seek
the death penalty for the petitioner’s first degree murder conviction. Accordingly, the trial court
sentenced the petitioner to life imprisonment for the first degree murder conviction and to twenty
years in the Tennessee Department of Correction for the attempted first degree murder conviction
and ordered that the sentences be served consecutively. State v. Archie Lee Roberts, No.01C01-
9603-CC-00082, 1997 WL 34425, at *1-2 (Tenn. Crim. App. at Nashville, January 30, 1997).

                 The petitioner appealed his case to this court on direct appeal, and we affirmed his
convictions. Subsequently, the petitioner filed a petition for post-conviction relief alleging
ineffective assistance of counsel. The post-conviction court denied the petitioner’s claim for relief,
finding that the petitioner had not established that the petitioner’s trial counsel had been ineffective
or that the petitioner had been prejudiced by counsel’s actions. On appeal, the petitioner raises the
following issue for our review: whether the post-conviction court erred in denying the petitioner’s
claim for relief.

                                            II. Analysis
               Because the petitioner initiated his post-conviction proceeding after May 10, 1995,
he must prove all of his factual allegations by clear and convincing evidence. Tenn. Code Ann. §
40-30-210(f) (1997). Unless the evidence preponderates otherwise, the post-conviction court’s
factual findings are binding upon this court. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
Likewise, the post-conviction court resolves all questions pertaining to the credibility of witnesses
and the weight and value to be attributed to their testimony. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). Moreover, we may not re-weigh or reevaluate the evidence or substitute
our inferences for those drawn by the post-conviction court. Owens v. State, 13 S.W.3d 742, 749

         1
          (...continued)
appeal. See State v. Ar chie Lee Roberts , No. 01C01-9603-CC-00082, 1997 WL 34425, at *1-2 (Tenn. Crim. App. at
Nashville, January 30, 1997). The petitioner failed to include a transcript of the trial or the sentencing hearing with the
record for our review.

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(Tenn. Crim. App. 1999), perm. to appeal denied, (Tenn.), cert. denied, __ U.S. __, 121 S. Ct. 116
(2000).

                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). On appeal, a post-conviction court’s findings of fact are
subject to a de novo review; however, we must accord those factual findings a presumption of
correctness, which is overcome only when a preponderance of the evidence is contrary to the post-
conviction court’s factual findings. Jehiel Fields v. State, __ S.W.3d __, E1999-00915-SC-R11-PC,
2001 WL 166380, at *4 (Tenn., February 20, 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 by this court with no presumption of correctness.
Id. at *5.

               To establish ineffective assistance of counsel, the petitioner must demonstrate two
things:
                 First, the [petitioner] must prove that his lawyer failed to render
                 competent legal representation. Once the [petitioner] proves
                 incompetence, he must then prove that the incompetent representation
                 prejudiced him to the extent of undermining confidence in the
                 outcome of the trial.
State v. Harris, 978 S.W.2d 109, 114 (Tenn. Crim. App. 1997); see also Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The petitioner must establish both factors in order
to be entitled to relief. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). In determining whether
or not counsel’s performance was deficient, the applicable test is whether counsel’s performance was
within the range of competence required of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice,
                 [t]he [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.

               Specifically, the petitioner alleges that his counsel was ineffective for failing to
introduce any mitigating evidence at his sentencing hearing. The petitioner contends that his trial
counsel should have introduced evidence of his “horrific childhood and emotional problems”
through the testimony of his sister, Debra Cunningham, and a psychiatrist, Dr. Barry Nurcombe.

               Cunningham testified at the post-conviction hearing that
               [the petitioner’s] dad. . . shot at our mother and just barely missed
               her. His dad locked us out of the house lots of times. . . not just a
               short time. . . . [The petitioner’s] dad held a sharp-pointed scissors to
               his throat. In fact, you know, made a face in there and told him that
               he was going to kill him if he didn’t come with him. And at that

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                point he had kidnapped [the petitioner] and his brother from my
                mother.
Cunningham stated that, following these incidents during the petitioner’s youth, the petitioner
experienced a drastic change in his personality, becoming very withdrawn. Additionally, regarding
the petitioner’s temper, Cunningham acknowledged that “either something occurs several times or
just over a period of time of making him very angry before he would show his temper at all, and then
it would be in an explosion.” Cunningham maintained that she was present at the petitioner’s trial
and sentencing hearing and would have been willing to testify at both proceedings.

               At the post-conviction hearing, the petitioner acknowledged that the only expert
witnesses available to testify on his behalf were the psychiatrists and the psychologist who had
examined him: Dr. James Machum, Dr. Dolorosa B. Yap, and Dr. Barry Nurcombe. However, on
appeal, the petitioner only complains about his trial counsel’s failure to call Dr. Nurcombe. The
petitioner also admitted at the post-conviction hearing that he did not remember much of his
childhood before the age of eight or nine. Specifically, the petitioner testified, “I’ve seen a few
people get shot, and that’s about it.”

                In analyzing claims of ineffective assistance during sentencing, our supreme court
has asserted that, even in the capital context, “there is no requirement that counsel present mitigating
evidence during the sentencing phase of trial.” Zagorski v. State, 983 S.W.2d 654, 657 (Tenn.
1998). Furthermore, “strategic choices made [by counsel] after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104
S. Ct. at 2066. Specifically, this court has previously found that
                [d]eference is made for sound trial strategy. However, this deference
                to tactical choices only applies if the choices are informed ones based
                upon adequate preparation.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (emphasis in original).

                Initially, we note that petitioner’s trial counsel testified that “our office put in over
200 man hours on this case.” Specifically, petitioner’s trial counsel testified that during his thorough
investigation of the petitioner’s case, he or members of his office spoke often with psychiatrists, a
psychologist, the petitioner’s friends from school, and the petitioner’s family. Trial counsel stated
that he frequently consulted with the other more experienced attorneys in his office regarding the
petitioner’s case because he grew to like the petitioner and wanted to achieve the best outcome
possible. The petitioner admitted that his trial counsel discussed the case and various aspects of the
trial strategy with him. A review of the record clearly establishes that trial counsel adequately
prepared for the petitioner’s trial and sentencing hearing. The post-conviction court specifically
noted that “[c]ounsel did the best they could with what they had.”

                The petitioner claims that, if Dr. Nurcombe had testified at the sentencing hearing
concerning the petitioner’s difficult childhood, the trial court would have had a basis for further
mitigation of the petitioner’s sentences. However, we note that, at the post-conviction hearing, the
petitioner failed to present any testimony from Dr. Nurcombe or any expert concerning the

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information which he alleges should have been presented at the sentencing hearing. Accordingly,
this court may not speculate about the evidence that Dr. Nurcombe may have presented. Black, 794
S.W.2d at 757.

                Additionally, the petitioner’s trial counsel testified at the post-conviction hearing that
there were strategic problems with calling Dr. Nurcombe. Specifically, trial counsel testified that
he did not call Dr. Nurcombe to testify because there were problems with Dr. Nurcombe’s
credibility. Counsel explained that Dr. Nurcombe consistently testified for the defense and had
never testified on behalf of the State, the doctor was not certified in the United States, and General
Gibson “ate [Dr. Nurcombe’s] lunch” during deposition and wanted the defense to call the doctor.
Trial counsel concluded that Dr. Nurcombe’s testimony would not necessarily be beneficial to the
petitioner. This court may not review the trial strategy of an attorney. See Cooper, 847 S.W.2d at
528. The petitioner’s trial counsel made a well-reasoned, strategic decision not to call Dr. Nurcombe
on the petitioner’s behalf. Moreover, the petitioner’s trial counsel attempted to offer a videotaped
deposition of Dr. Nurcombe into evidence at the sentencing hearing. Accordingly, the petitioner has
failed to prove that his trial counsel was ineffective for failing to call Dr. Nurcombe.

                 Again, the petitioner also contends that his trial counsel rendered ineffective
assistance by failing to call his sister, Debra Cunningham, to testify regarding his difficult childhood.
Cunningham testified at the post-conviction hearing that, as a youth, the petitioner was kidnapped
by his father, witnessed his father shoot at his mother, and watched his father abuse his mother. She
testified that the petitioner became withdrawn and developed an explosive temper as a result of the
his difficult childhood. The petitioner contends that the trial court would have further mitigated his
sentences if this evidence had been introduced at the sentencing hearing.

                We note that
                [t]he trial judge had no discretion as to the first degree murder
                conviction as life imprisonment was the only possible punishment
                due to the [petitioner’s] age. The range of punishment for attempted
                 first degree murder as a Standard Offender is a minimum of fifteen
                 (15) years and a maximum of twenty-five (25) years. The trial judge
                 sentenced the [petitioner] in the middle of the range.
Roberts, No. 01C01-9603-CC-00082, 1997 WL 34425, at *3. The trial court enhanced the
petitioner’s sentence because “the victim’s personal injuries from the stab wound were particularly
great,” and “the [petitioner] employed a deadly weapon during the commission of the offense.” Id.;
see also Tenn. Code Ann. § 40-35-114(6) and (9) (1997). The trial court further applied the
following mitigating factors to the petitioner’s sentence: (3) substantial grounds existed tending to
excuse or justify the petitioner’s criminal conduct, though failing to establish a defense; (6) the
petitioner, because of his youth, lacked substantial judgment in committing the offense; and (8) the
petitioner was suffering from a mental condition that significantly reduced his culpability. Id.; see
also Tenn. Code Ann. § 40-35-113 (1997). Applying these enhancement and mitigating factors, the
trial court sentenced the petitioner to twenty years incarceration for attempted first degree murder.
See Tenn. Code Ann. § 39-11-117(a)(2) (1997); 40-35-112(a)(1) (1997).

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                Given the extremely violent nature of the petitioner’s crimes and the fact that the
petitioner did not dispute his guilt of those crimes, the petitioner has failed to show how additional
information regarding his childhood would have provided a basis for further mitigation. The trial
court considered the petitioner’s youth, his lack of judgment, and a mental condition that
significantly reduced his culpability. There is no evidence that, had additional testimony been
presented, the result of the proceeding would have been different. Accordingly, we find that the
petitioner has failed to establish that his trial counsel was ineffective. Even if trial counsel was
ineffective at the sentencing phase, the petitioner has nevertheless failed to demonstrate how this
failure prejudiced him. See Goad, 938 S.W.2d at 370.

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the post-conviction court.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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