         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 13, 2002 Session

STATE OF TENNESSEE v. RICKY BRANDON and JIMMY W. BRANDON

                       Appeal from the Circuit Court for Coffee County
                           No. 30,611    L. Craig Johnson, Judge



                   No. M2002-00073-CCA-R3-CD - Filed October 15, 2002


The Appellants, Ricky Brandon and Jimmy W. Brandon, were convicted by a Coffee County jury
of misdemeanor assault. In this direct appeal of their convictions, the Appellants argue that they
received ineffective assistance of counsel at trial and, as such, their convictions should be vacated.
After review, we find no error and affirm the judgment.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE
OGLE , JJ., joined.

Robert L. Huskey, Manchester, Tennessee, for the Appellants, Ricky Brandon and Jimmy Brandon.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; C. Michael Layne, District Attorney General; and Doug Aaron,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        The Appellants’ convictions stem from an altercation on April 5, 2000, with their neighbor,
Fred Nash. The Appellants, who are brothers, were initially indicted for aggravated assault, along
with their sister, Darlene Brandon, who was charged with simple assault. Following a jury trial, the
Appellants were found guilty of the lesser offense of assault, and Darlene was acquitted of all
charges. Ill-will between Nash and the Appellants was apparently firmly entrenched. This latest
incident followed an episode where a drunken Jimmy Brandon struck Nash in the eye and Nash
reciprocated by breaking a glass over Brandon’s head. On April 5th, the victim, Nash, and his wife
drove from their driveway past the Appellants, who were working on Ricky’s truck. According to
Ricky Brandon, as the victim drove by him, “gravels was spraying all over my truck.” In response,
Ricky Brandon “flipped the bird” at the victim. Nash stopped his truck, grabbed a can of mace and
walked back toward the Appellant, Ricky Brandon. From this point forward, there are material
conflicts in the testimony of the prosecution and defense witnesses.

        In the light most favorable to the State, the proof established that Ricky Brandon rushed
toward the victim, hitting him in the face. The Appellant, Jimmy Brandon, joined in the fray,
helping his brother “beat the soup” out of the victim. As a result of the beating, the victim lost two
teeth and received multiple facial abrasions and contusions, resulting in two hospitalizations.

        At trial, the Appellant, Ricky Brandon, admitted to striking the victim; however, he argued
that his conduct was justified upon grounds of self-defense. The Appellant, Jimmy Brandon,
presented an alibi defense, which included five witnesses who testified that he was not present when
the assault occurred.1 Coffee County Deputy Sheriff Danny Ferrell testified that he responded to the
scene and took statements from those present. He also admitted taking possession of the mace can
used in the altercation. Ferrell further testified that the can and one statement were subsequently lost,
when a department sergeant left the force.

                                                      Analysis

        The Appellants’ sole ground within their motion for new trial raises the issue of ineffective
assistance of counsel at trial. We have repeatedly held that,

         [T]he practice of raising ineffective assistance of counsel claims on direct appeal is
         ‘fraught with peril’ since it ‘is virtually impossible to demonstrate prejudice as
         required’ without an evidentiary hearing. See Kirby George Wallace v. State, No.
         01C01-9308-CC-00275 (Tenn. Crim. App. at Nashville, Sept. 15, 1994). Instead,
         ‘ineffective assistance of counsel claims should normally be raised by petition for
         post-conviction relief.’ State v. Derenzy Turner and Vernon West, No. 02C01-9512-
         CR-00390 (Tenn. Crim. App. at Jackson, July 11, 1997) perm. to appeal denied,
         (Tenn.1998).

State v. Bobby Vincent Blackmon, No. M2000-03149-CCA-R3-CD (Tenn. Crim. App. at Nashville,
Nov. 16, 2001).

        The insertion of an ineffective assistance claim within a motion for new trial essentially
transforms the hearing on the motion into a post-conviction proceeding. State v. Kathy Jane Giles,
No. W2001-01468-CCA-R3-CD (Tenn. Crim. App. at Jackson, Apr. 2, 2002). In a post- conviction
proceeding, the Appellant bears the burden of establishing his claims by clear and convincing
evidence. Tenn. Code Ann. § 40-30-210(f) (1997). To prevail on appeal, the Appellant is required
to demonstrate both that counsel’s performance was deficient and that prejudice resulted from the


         1
          These witnesses included both the Appellants, their sister Darlene, Darlene’s boyfriend, and Ange l Brando n’s
boyfriend.

                                                          -2-
deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The
reviewing court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the Appellant as a result of the alleged deficiency. Id. at 697.

        When reviewing a claim of ineffective assistance, the court must decide whether counsel’s
representation fell below the range of competence demanded by attorneys in criminal cases. Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The issues of deficient performance by counsel and
possible prejudice to the defense are mixed questions of law and fact; thus, our review of the case
is de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

        With regard to their respective claims, the Appellants argue:

        1. Was Defendant, Jimmy Brandon, denied effective assistance of counsel by
        counsel failing to present to the jury his employer whose testimony would be an alibi
        for the Defendant and show that he was not present at the scene of the crime and for
        failing to subpoena Richard Spencer who was present and could verify Jimmy
        Brandon’s absence?

        2. Was Ricky Brandon denied effective assistance of counsel when his attorney,
        despite his request, failed to submit into evidence the mace can that proved self-
        defense and the evidence of the statements taken at the scene which would bring into
        question the credibility of the alleged victim?

        At the motion for new trial, the Appellants called no witnesses to support either of their
claims. Instead, they each submitted affidavits, with the Appellants as the affiants, essentially setting
forth facts supporting their ineffective assistance of counsel claims. The affidavit of the Appellant,
Jimmy Brandon, in sum, asserts that “he was not at the scene of the incident of the alleged assault”
of the victim and that he requested that his attorney subpoena his employer and Richard Spencer as
alibi witnesses at his trial. The Appellant, Ricky Brandon, asserts that he requested his attorney
obtain statements prepared by the investigating deputy sheriff and the mace can for production at
trial, which was not done.

       First, we are constrained to note the following established principles relating to the
admissibility of affidavits as evidence:

        An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary
        hearing, because it is not subject to cross examination and would improperly shift the
        burden of proof to the adverse party. . . . Affidavits are generally not competent
        evidence unless provided by statute. . . . As a general rule, a party is not permitted to
        create an issue of fact by submitting a[n] affidavit whose conclusions contradict a
        prior deposition or other sworn testimony.




                                                  -3-
3 AM . JUR. 2d Affidavits § 19 (2002). Moreover, affidavits are incapable of credibility assessment,
which is oftentimes pivotal in determining ineffective assistance of counsel claims.

        It is a well-established principle that relief under the prejudice prong is contingent upon the
Appellant producing material witnesses at the post-conviction hearing who would have testified
favorably in support of his defense if called at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990) (emphasis added). Failure to present such witnesses precludes satisfaction of the
Strickland standard. Id. at 758.

        In the case before us, the only proof presented at the motion for new trial hearing was the
affidavits of the Appellants, which themselves contained no new information. We find these facts
insufficient and the use of the affidavits inappropriate in establishing the Appellants’ burden of proof
by clear and convincing evidence. The trial court’s denial of post-conviction relief is affirmed.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




                                                  -4-
