          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              Assigned on Briefs October 29, 2002

                    DAVID LUNSFORD v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Monroe County
                             No. 99-184    Carroll L. Ross, Judge



                                    No. E2002-00861-CCA-R3-PC
                                         November 13, 2002

The petitioner appeals the denial of his post-conviction relief petition, arguing his trial counsel was
ineffective for failing to locate an alibi witness for his aggravated burglary trial. We affirm the
judgment of the post-conviction court, which found trial counsel made reasonable efforts to locate
the potential witness, and the petitioner was not prejudiced by the inability to present the witness’s
testimony at trial.

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

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER , J., joined.

R. Joshua McKee, Athens, Tennessee, for the appellant, David Lunsford.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Charles W. Pope, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.


                                               OPINION

         A Monroe County jury convicted the defendant of aggravated burglary after Christiana Upton
testified the defendant broke into her apartment at approximately 2:00 a.m. on September 18, 1999.
We affirmed the judgment of the trial court. See State v. David Lunsford, No. E2000-01572-CCA-
R3-CD, 2001 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 6, 2001, at Knoxville). The
petitioner filed a timely post-conviction relief petition alleging trial counsel was ineffective for failing
to call Michael Myers as an alibi witness. At the post-conviction hearing, the petitioner presented the
testimony of Myers, who stated he left the petitioner at a gas station sometime between 1:00 a.m. and
2:00 a.m. on the morning of the offense. Myers estimated it would take thirty minutes to walk from
the gas station to the crime scene.
        The petitioner testified he gave his trial counsel Myers’ name months prior to his trial, but
conceded he did not give her Myers’ address or telephone number. Trial counsel testified the
petitioner did not provide her with Myers’ name; she said she learned of Myers through discovery
provided by the state. According to trial counsel, she asked the petitioner for information concerning
Myers on several occasions, and he replied he was “working on it.” She stated she checked with a
court clerk for information on Myers after the petitioner mentioned Myers might be on probation.
She said she obtained an out-of-state business telephone number for a Michael Myers, who may not
have been the same person; she gave the number to her investigator, who left messages, but received
no response. She testified the assistant district attorney told her law enforcement was also searching
for Myers.

          Trial counsel said she was, nevertheless, concerned about calling Myers as a witness due to
the close proximity between the gas station and the crime scene. She testified that a week or two
before trial, she again discussed Myers’ potential testimony with the petitioner, and he indicated he
was not certain he wanted Myers called as a witness because his testimony might not be helpful. The
petitioner testified at trial that a man named “Mike” gave him a ride and left him at the gas station.
David Lunsford, 2001 Tenn. Crim. App. LEXIS 160, at **5-6. Trial counsel stated there was proof
at trial the gas station was in close proximity to the crime scene.

        The post-conviction court found, inter alia: (1) trial counsel made reasonable efforts to locate
Myers, but was unable to do so prior to trial; (2) the petitioner told trial counsel that Myers’ testimony
might not be helpful at trial; and (3) at trial, the state presented strong proof of the petitioner’s identity
as the perpetrator. The post-conviction court found no deficiency by trial counsel and no proof that
the outcome of the trial would have been any different had the witness testified.


                          INEFFECTIVE ASSISTANCE OF COUNSEL

        The petitioner argues the trial court erred in finding trial counsel provided effective
representation. For a petitioner to successfully overturn a conviction based on ineffective assistance
of counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an adverse
effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L Ed. 2d
674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled to relief.
The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess a
reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful, tactical
decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

      The petitioner bears the burden of proving his allegations by clear and convincing evidence.
Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-conviction court are



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conclusive and will not be disturbed unless the evidence contained in the record preponderates against
them. See Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

                                              ANALYSIS

        In the case sub judice, the evidence in the record does not preponderate against the post-
conviction court’s findings of fact. Trial counsel testified that she asked the petitioner for information
on how to locate Myers, and that she attempted to locate him through the only information the
petitioner provided. Like the trial court, we conclude trial counsel’s efforts to locate Myers, though
unsuccessful, were reasonable. The evidence also supports the trial court’s finding that the defendant
told trial counsel Myers’ testimony might not be helpful at trial. Further, the evidence does not
preponderate against the post-conviction court’s determination that the petitioner did not establish
prejudice by the inability to present Myers’ testimony to the jury. At trial, the victim identified the
defendant at a “show-up” about three hours after the burglary and again identified him at trial. See
David Lunsford, 2001 Tenn. Crim. App. LEXIS 160, at *5. Myers was unable to testify as to the
exact time he left the petitioner at the gas station; he could only say it was sometime between 1:00
a.m. and 2:00 a.m. This testimony does not establish an alibi for an offense that occurred at
approximately 2:00 a.m. in close proximity to the gas station. Rather, Myers’ testimony could have
proved harmful to the petitioner’s defense because it placed the petitioner in proximity to the crime
scene within an hour of the offense.

        Accordingly, we affirm the judgment of the post-conviction court.



                                                         _______________________________________
                                                         JOE G. RILEY, JUDGE




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