         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  September 20, 2005 Session

                   STATE OF TENNESSEE v. WADE P. TUCKER

                      Appeal from the Circuit Court for Franklin County
                             No. 13166    J. Curtis Smith, Judge



                   No. M2004-02792-CCA-R3-PC - Filed November 22, 2005


This is an appeal as of right from a denial of post-conviction relief. The Defendant, Wade P. Tucker,
was convicted of attempted first-degree murder pursuant to a guilty plea, and especially aggravated
robbery and aggravated burglary following a bench trial. The Defendant was sentenced to twenty-
four years in the custody of the Tennessee Department of Correction (TDOC). This Court upheld
the Defendant’s attempted murder and especially aggravated robbery convictions on direct appeal,
but reversed the conviction for aggravated burglary. See State v. Wade P. Tucker, No. M2001-
02298-CCA-R3-CD, 2002 WL 1574998 (Tenn. Crim. App., Nashville, July 17, 2002). The
Defendant subsequently filed a petition for post-conviction relief, which was denied. The Defendant
now appeals denial of post-conviction relief, arguing: (1) his conviction for attempted first degree
murder is void due to a faulty guilty plea; and (2) he received ineffective assistance of trial counsel.
We affirm the judgment of the post-conviction court.

      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 NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Robert G. Morgan and Francis Pryor, Assistant Public Defenders, Jasper, Tennessee, for the
appellant, Wade P. Tucker.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Steve M. Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                                               FACTS
I. Background Facts
       The convictions at issue in this case result from the robbery and brutal shooting of the
Defendant’s estranged wife in her rural Franklin County home during the early morning hours of
January 23, 2000. The events leading to the Defendant’s convictions were summarized by this
Court on direct appeal as follows:

               The stipulation of facts revealed that the defendant and the victim were
       husband and wife. On November 19, 1999, the victim filed a divorce complaint in
       which she alleged that the defendant had been guilty of “inappropriate marital
       conduct and adultery.” In the complaint, the victim sought custody of the parties’ two
       minor children and asked that she be awarded, inter alia, the parties’ jointly-owned
       house located on Rock Creek Road in Franklin County. As of January 23, 2000, the
       divorce was still pending, no property rights had been adjudicated, and the defendant
       was not subject to any order restraining him from going about the victim or the
       parties’ house. The defendant resided at the Dripping Springs Subdivision home of
       his father, Gerald Tucker, and the victim resided at the Rock Creek Road house.
       Between November 19, 1999[,] and January 23, 2000, the defendant had been to the
       Rock Creek Road house on multiple occasions to pick up and drop off the parties’
       children. On the evening of January 22, 2000, the parties’ children were staying at
       Gerald Tucker’s home. Thus, on the night of January 22 and in the early morning
       hours of January 23, 2000, the victim was the only person staying at the Rock Creek
       Road house.
               At approximately 2:30 a.m. on January 23, 2000, the victim awoke to gunfire
       and realized that she had been shot. She got up from her bed and was shot again. She
       saw “a male looking figure near her bedroom door holding a long-barreled gun.” The
       victim fled to a closet, and the assailant, who was wearing a ski mask, came into the
       closet and shot her again. After the assailant left the closet, the victim crawled toward
       her bed to get the cordless telephone for the purpose of calling 911. Due to injuries
       to her hands and arms, she was unable to handle the phone and pushed it along the
       floor back to the closet. She heard sounds of the assailant moving about in the house.
       The victim was able to dial 911 with her tongue and ultimately reached the Franklin
       County Sheriff’s Department dispatcher. While the victim was on the telephone, she
       saw the ski-masked intruder come back to the closet through the glow of the
       bathroom light. Despite the presence of the ski mask, the victim was able to
       recognize the intruder as the defendant. She screamed, and the defendant shot her
       again. The victim “played dead at that time.” She heard the defendant in the bedroom
       opening drawers in her jewelry chest.
               Franklin County officers arrived at the Rock Creek Road house pursuant to
       the 911 call and found the victim in the closet. She was transported to a hospital in
       Winchester and was ultimately air-lifted to a medical center in Chattanooga. The


                                                 -2-
victim suffered “multiple gunshot wounds to her chest and neck area, and to her arms
and hands.” The stipulation of facts reveals that the victim “was severely injured,
with said injuries being life threatening [, resulting in her being] disfigured.”
          Both the defendant’s and the victim’s lives were insured by a Horace Mann
Insurance Company life insurance policy which provided “that, if one of them died,
the survivor would receive $300,000.”
          The officers obtained a sample of the victim’s blood, and they recovered
shotgun pellets from the victim's bed, the bedroom floor, the closet, the victim’s
night shirt, and the hospital trauma room where she was treated. The officers also
recovered shotgun wadding from the bedroom area and from the victim’s person. The
officers found the victim’s jewelry chest open and drawers pulled out of furniture
throughout the house. An outside door was standing open with a window in the door
broken. The officers obtained samples of glass from the door. They also found a live,
twelve-gauge shotgun shell in the house.
          Officers who were dispatched to Gerald Tucker’s house arrived at 3:08 a.m.
and found the defendant’s truck parked outside the house with the “hood of the truck
. . . hot to the touch.” When the defendant’s father led the officers to the defendant’s
room, “he actually crawled out of the bed and crawled on the floor before standing
up with the assistance of his father.” He appeared to the officers to be “very shaken.”
          With the consent of Gerald Tucker, the officers searched his house and found
a twelve-gauge shotgun that, despite having been recently cleaned with oil, contained
human blood and tissue inside the barrel. The DNA of the blood and tissue inside the
shotgun barrel was consistent with the victim’s DNA. The officers found particles
of glass inside the defendant's truck which proved to be “like and consistent with
respect to refractive index” to the glass broken from the door window at the Rock
Creek Road house.
          In a statement given to the officers, the defendant denied that he had gone to
the victim’s house and that he had shot her. He admitted to an intimate relationship
with a woman named Sabrina Hodge.
          On February 18, 2000, a neighbor of Gerald Tucker found a dark plastic bag
in a wooded area near the road that leads to the defendant’s father's house. Inside the
bag, he found a wallet that contained the victim’s identification papers. Being aware
of the assault against the victim, the neighbor called the TBI. The TBI agent who
took custody of the bag found inside, in addition to the wallet, numerous pieces of
jewelry, coins, a ski mask, gloves, coveralls, and boots. The plastic bag also
contained another plastic bag which contained “numerous love letters and cards”
which had been sent to the defendant from Ms. Hodge. The second bag also
contained “numerous photos of Sabrina Hodge in revealing underwear clothing.”
          The victim identified the wallet as hers and the jewelry and coins as her
property that had been stored in her jewelry chest prior to the attack. The photographs
bore the defendant’s fingerprints. The victim identified the ski mask as being similar
to the one the defendant wore during the attack. The ski mask and gloves bore
particles of glass which “were like and consistent with respect to refractive index”


                                          -3-
        to the glass broken from the door. Furthermore, via DNA analysis, blood found on
        the ski mask matched the victim’s blood. The coveralls from the bag contained five
        spent twelve-gauge shotgun-shell casings. Laboratory analysis revealed that all five
        shells had been fired from the twelve-gauge shotgun found at Gerald Tucker’s house.
        Analysis of the empty shotgun casings found in the coveralls and the live
        twelve-gauge rounds found in the victim’s house and in the defendant’s truck
        revealed that all of the ammunition was “likely manufactured at the same time as
        each other and were likely packaged together by the manufacturer.”
                Based upon comparisons made between the pellet pattern of the twelve-gauge
        shotgun found in Gerald Tucker’s house and the pellet pattern found in the victim’s
        nightshirt, TBI laboratory personnel opined that she was shot on at least one occasion
        from a distance of less than ten feet.

Wade P. Tucker, 2002 WL 1574996, at *1-3.

        In March of 2000, a Franklin County grand jury indicted the Defendant on one count of
attempted first degree murder, see Tenn. Code Ann. §§ 39-13-202 and 39-12-101, one count of
especially aggravated robbery, see id. § 39-13-403, and one count of especially aggravated burglary,
see id. § 39-14-404.

II. Plea Hearing and Bench Trial
         At a hearing conducted in May of 2001, the Defendant entered a guilty plea to the attempted
murder charge and pled not guilty to the remaining two charges.1 The record reveals that the
Defendant elected to proceed on the robbery and burglary charges at a bench trial pursuant to a
carefully crafted stipulation of facts. Furthermore, all three pleas were entered with the
understanding of “open” sentencing, with the trial court to determine the Defendant’s sentence at
a later hearing.

        At the plea hearing, the trial court carefully explained to the Defendant the rights he was
forfeiting by entering a guilty plea to the charge of attempted murder. During this colloquy, the court
asked the Defendant no less than five times if he had any questions, and each time the Defendant
responded, “No, sir.” The court asked the Defendant if he wanted to give up his rights, and he
replied, “Yes, sir.” The court asked the Defendant if his attorney had discussed his case with him;
if they had discussed possible defenses; and if he was satisfied with his counsel’s representation.
To each of these questions the Defendant replied, “Yes, sir.” The court asked the Defendant if
anyone had forced him to enter his guilty plea, and the Defendant replied, “No, sir.” The court asked
the Defendant if he had read and discussed with his attorney his written guilty plea, and if he had
signed it, and the Defendant replied, “Yes, sir.” As a final question, the court asked: “Mr. Tucker,
are you guilty of this offense?” However, the Defendant did not speak, rather the Defendant’s
counsel responded as follows: “Your Honor, under the facts and circumstances that we’ve indicated,


        1
          Prior to entering his guilty plea to the attempted murder charge in open court, the Defendant had signed a
Guilty Plea and W aiver of Rights form as to this charge in April of 2001.

                                                        -4-
I have, Mr. Tucker has entered this guilty plea willingly and openly. There is simply no way to
contravene the scientific evidence, the other evidence indicated, and for that reason he will state he’s
entering a guilty plea.” Whereupon the trial court accepted the plea and found the Defendant guilty
of attempted first degree murder.

       Based on the stipulated facts entered at the plea hearing, the trial court also found the
Defendant guilty of the indicted charge of especially aggravated robbery, and guilty of the lesser-
included charge of aggravated burglary.2

III. Sentencing and Direct Appeal
        In May of 2001, the Defendant was sentenced as a Range I, standard offender, to twenty-four
years for his attempted murder conviction, twenty-four years as a violent offender for his especially
aggravated robbery conviction,3 and five years as a standard offender for his aggravated burglary
conviction. The sentences were ordered to be served concurrently, for an effective twenty-four year
term in the TDOC. On direct appeal, this Court reversed and vacated the aggravated burglary
conviction, but affirmed the remaining convictions and twenty-four year sentences. See Wade P.
Tucker, 2002 WL 1574996. In December of 2002, the Tennessee Supreme Court denied further
appeal.

IV. Post-conviction
        In November of 2003, the Defendant timely filed a pro se petition for post-conviction relief
alleging multiple issues. An attorney was appointed, and an amended post-conviction petition
alleging an involuntary guilty plea and ineffective assistance of counsel was filed in March of 2004.
The Defendant received a post-conviction hearing in August of 2004.

        At the post-conviction evidentiary hearing, the Defendant’s trial counsel (Counsel)4 testified
that he met with the Defendant and various members of his family “many times.” During these
meetings Counsel discussed possible theories of defense, but ultimately determined the evidence
against his client was “overwhelming.” Counsel therefore advised his client to plead guilty to the
attempted murder charge and “seek dismissal of the Especially Aggravated Robbery case because
of the deferential in punishment,” thereby making the Defendant “eligible for parole as early as
possible.” When asked if he was aware of Mr. Milton Eidson as a potential witness, Counsel said
he was, but elected not to interview him as he believed any effort to do so would have been “futile”
considering the substantial evidence against his client.




         2
             The Defendant had been indicted for especially aggravated burglary.

         3
         A conviction for especially aggravated robbery requires 100% service of sentence. See Tenn. Code Ann. §
40-35-501(i)(1) and (2)(E).

         4
          The Defendant’s trial counsel, against whom the Defendant’s allegations of ineffective assistance of counsel
were levied, will be referred to only as “Counsel” throughout this opinion.

                                                          -5-
        When asked about employing experts to challenge the State’s DNA evidence, Counsel stated
he discussed the process, including the cost, with the Defendant and his family, but believed any
such efforts would not have helped the case given the “totality of the facts.” Counsel testified that
he did not believe that the State’s scientific evidence “would be contravened” by other experts, and
further noted: “You’ve got to remember in this case there was not only circumstantial evidence, but
there was direct evidence in this case.”

        When asked why he did not pursue government funding to hire expert witnesses to challenge
the State’s scientific evidence, Counsel stated that he did attempt to have funds held in escrow
pursuant to the Defendant’s divorce proceedings released for this purpose, but his request was
denied. However, Counsel added that the real issue was not a matter of whether his client could
afford to hire expert witnesses, but rather that doing so would not, in his opinion, yield any positive
results. On cross-examination Counsel testified that he was experienced in criminal law, had
previously handled cases where DNA evidence was challenged, and he had fully discussed with the
Defendant the pros and cons of proceeding to trial or pleading guilty.

         Mr. Milton Eidson, a neighbor of the property where the shooting took place, testified that
on the night in question he observed a black Chevrolet pickup in his driveway between 11:30 and
11:45 p.m., and approximately an hour later he heard three gunshots. On cross-examination, Mr.
Eidson admitted he was not sure of the exact times of these events as he was not “looking at the
clock,” and it may have been as late as 3:00 a.m. when he heard the three gunshots. Mr. Eidson
testified that the distance between his driveway, where he saw the truck, and the house where the
victim was shot, was about six hundred yards.

        The Defendant’s father, Mr. Gerald Tucker, testified that he accompanied his son in meetings
with Counsel “numerous times.” During these meetings, Counsel was informed of Mr. Eidson, who
could testify to an unidentified individual in a black Chevrolet truck being in the general vicinity the
same night as the shooting, and of the Defendant’s claim that his girlfriend’s ex-husband kidnapped
him at gunpoint and forced him to participate in the shooting of the victim. However, Mr. Tucker
believed Counsel never followed up on either of these defense theories. Mr. Tucker also stated that
Counsel informed him that hiring outside experts to challenge the State’s DNA evidence would be
very expensive, but failed to inform him that government funding may have been available for such
a challenge.

        Additionally, two of the Defendant’s aunts and his sister also testified that they met with
Counsel and made him aware of possible leads on alternative defense theories, but Counsel failed
to pursue them.

       The Defendant did not testify at his post-conviction hearing.

        In a September 2004 order the trial court denied the Defendant’s petition for post-conviction
relief. In this order, the court made detailed findings and concluded that Counsel’s “strategic and
tactical choices were reasonable in light of the state’s overwhelming proof in this case and should


                                                  -6-
not now be second-guessed.” Thus, it found that the Defendant failed to show any evidence of
deficient representation by his trial counsel. As to the claim of an involuntary guilty plea, the court
noted that the Defendant “did not take the stand at the post-conviction hearing and presented no
proof” as to this claim, thereby rendering it meritless. This appeal followed.

                                              ANALYSIS
        The Defendant first alleges that his conviction for attempted murder is void because he never
audibly admitted guilt at the plea hearing. The Defendant also claims his trial attorney was
constitutionally deficient in two respects: (1) Counsel failed to interview potential witnesses, and (2)
Counsel failed to seek funding for independent review of the State’s scientific evidence. We
disagree.

I. Standard of Review
        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. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate 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. See 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. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

II. Void Guilty Plea
        In the Defendant’s first issue on appeal, he claims that “the judgment of guilt to attempted
murder in the first degree [is] void because [he] never admitted guilt at the plea proceeding.” To
support this assertion the Defendant argues that while he affirmed that he understood the rights he
was surrendering and that he had signed a written guilty plea, he never himself audibly said he was
guilty. Rather, his trial counsel answered in the affirmative for him. The Defendant argues that his
plea is therefore void, and his plea proceeding was constitutionally deficient, violating his due
process rights as guaranteed by Article I, section 9 of the Tennessee Constitution and the Sixth
Amendment to the United States Constitution.

       The Defendant admits that he failed to raise this issue on direct appeal, or in his post-
conviction petition, or at his post-conviction hearing, but argues that it is not waived because his
judgment of guilt is “void ab in nitio” [sic] and therefore not subject to waiver. Alternatively, the
Defendant argues that this is an “exceptional circumstance[]” wherein this Court can address the
issue on its own accord as a matter of plain error, citing State v. Manning, 500 S.W.2d 913, 914
(Tenn. 1973).5 The State argues that the Defendant has waived this issue for failure to include it in
the post-conviction petition or raise it at prior proceedings.


        5
            Manning was a direct appeal, not an appeal of a post-conviction judgment.

                                                         -7-
         We begin our analysis by noting that the Defendant’s conviction would be at most voidable,
and not void. The Defendant has not provided any authority, and we know of none, to support his
claim that failing to personally answer “yes” when asked “are you guilty?” at a guilty plea hearing
renders his judgment of conviction void on its face.6 Rather, the well established standard for
challenging the validity of a plea proceeding and a potentially void (i.e. voidable) guilty plea is set
forth in Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Macky, 553 S.W.2d. 337 (Tenn. 1977).
 However, in this case, the Defendant has waived any potential Boykin or Macky claim with regard
to not audibly admitting his guilt by failing to raise this issue in his post-conviction petition or at prior
proceedings.7

         The record reveals that the Defendant did not raise the issue of a “void” conviction in his post-
conviction petition or before the post-conviction court. It is settled law that an issue not presented
in the petition for post-conviction relief or any of its amendments “may not be raised for
the first time on appeal.” State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), rev’d on other
grounds, State v. Terry, 118 S.W. 3d 355 (Tenn. 2003). See also Tenn. Code Ann. § 40-30-106(g)
(“A ground for relief is waived if the petitioner personally or through an attorney failed to present it
for determination in any proceeding before a court of competent jurisdiction in which the ground
could have been presented.”). Moreover, plain error analysis is not available in an appeal of a post-
conviction denial. See State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000). Accordingly, this issue
is waived.

III. Ineffective Assistance of Counsel
        The Defendant also asserts that his trial attorney was constitutionally deficient in two respects
relating to his defense: (1) Counsel failed to interview a potential witness, and (2) Counsel failed to
“seek funding to provide resources for independent review of forensic evidence.” The Defendant
further argues that these deficiencies led to actual prejudice and he is therefore entitled to post-
conviction relief.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal 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).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the



         6
          W e note that a defendant is allowed to enter a plea of guilty when he or she believes it is in their best interest
to accept a plea bargain, but while still maintaining his or her innocence. See North Carolina v. Alford, 400 U.S. 25,
37-38 (1970). Accordingly, it is well settled law that a guilty plea may be accepted, and a judgment of conviction
entered, without the defendant actually admitting he or she is guilty.

         7
           W e note the Defendant raised an involuntary guilty plea claim in his original pro se post-conviction petition,
however, his argument was that his plea agreement was violated when he was sentenced to serve 100% of his especially
aggravated robbery conviction. We note that the record reveals that the Defendant never entered into a plea agreement,
and this argument was not raised at the post-conviction hearing when the Defendant was represented by counsel.

                                                             -8-
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

         A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of two components:
deficient performance by the defendant’s lawyer, and actual prejudice to the defense caused by the
deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant bears the burden of
establishing both of these components by clear and convincing evidence. See Tenn. Code Ann. § 40-
30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice
is a sufficient basis upon which to deny relief on an ineffective assistance of counsel claim. See
Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        This two-part standard of measuring ineffective assistance of counsel also applies to claims
arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component
is modified such that the defendant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at
59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d
at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of hindsight to
second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and circumstances
as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246
(Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court
reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de novo
standard, accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--such as whether
counsel’s performance was deficient or whether that deficiency was prejudicial--are reviewed under
a purely de novo standard, with no presumption of correctness given to the trial court’s conclusions.”
Id.

         A. Failure to Interview a Potential Witness
         The Defendant argues that Counsel provided deficient representation because he knew Mr.
Eidson was a potential witness, but failed to interview him. The Defendant asserts that Mr. Eidson
testified at the post-conviction hearing that an unidentified person was in the same general vicinity
of the crime scene the night of the incident. Mr. Eidson testified that this person was in a black


                                                  -9-
Chevrolet pickup, and that he heard gunshots between midnight and 1:00 a.m.8 The Defendant now
claims that Mr. Eidson’s testimony contradicted the State’s evidence, and Counsel’s failure to
discover this testimony prior to his guilty plea and bench trial amounted to deficient representation
which prejudiced him.

         It appears that the Defendant’s argument is actually a claim of inadequate investigation prior
to the guilty plea. However, the argument is also directed at the failure to subpoena the witness to
the Defendant’s trial. To prevail on an ineffective assistance of counsel claim with regard to failure
to subpoena or produce a potential witness, the defendant must 1) produce the witness at the post-
conviction hearing, 2) show that trial counsel could have located the witness, and 3) “elicit both
favorable and material testimony from the witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn.
Crim. App. 1996) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). In the case
at hand, the Defendant produced the allegedly overlooked witness at the post-conviction proceeding,
and Counsel admitted that he was made aware of this potential witness. We again note that the
Defendant’s conviction for attempted first degree murder was based upon his guilty plea, not a trial
on the merits. We also note that his conviction for aggravated robbery followed a bench trial with
all facts being stipulated.

        Mr. Eidson testified at the post-conviction hearing that he heard shots, but added that it was
not unusual to hear gunshots in the rural area in which he lived. He also stated that he was not sure
of the time he heard the shots, and they may have occurred as late as 3:00 a.m. the morning of the
incident. Therefore, the shots Mr. Eidson heard did not contradict the time frame advanced by the
State and documented by the 911 call. Moreover, the Defendant failed to present any potential
defense theory in which the black Chevrolet truck observed by Mr. Eidson in his driveway, which was
some six hundred yards from the house in which the victim was shot, would have served as material
evidence. In short, we fail to see how Mr. Eidson’s testimony was particularly favorable to the
Defendant, and we conclude that it was not material to his case. We are unconvinced that
interviewing this witness would have caused Counsel to alter his opinion that the Defendant should
plead guilty to attempted murder. We are also unconvinced that this witness’s statement would have
modified counsel’s strategy to submit the remaining charges to the judge upon stipulated facts.
Accordingly, we find that Counsel’s decision not to interview Mr. Eidson in no way prejudiced the
Defendant.

         B. Failure to pursue funds to challenge the scientific evidence
         In the Defendant’s last issue on appeal, he claims that his trial attorney provided ineffective
assistance of counsel by failing to declare his client indigent and pursue government funding to hire
independent experts to review and potentially challenge the State’s forensic evidence. In support of
this claim, the Defendant argues that case law requires the appointment of expert assistance when an
indigent defendant has shown assistance “is necessary” for a constitutionally adequate defense,
quoting from State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995), and citing State v. Scott, 33


         8
           Testimony was submitted at the post-conviction hearing that the Defendant’s truck was a grey Toyota, and the
stipulated facts placed the shooting of the victim at 2:30 a.m.

                                                         -10-
S.W.3d 746 (Tenn. 2000) (holding that an indigent defendant was entitled to state-funded expert
assistance in the area of DNA analysis).

        We conclude the Defendant has failed to establish that Counsel performed deficiently when
he determined that it would have been “futile” to pursue funds for independent review of the scientific
evidence because he did not believe “it would be contravened.” In Barnett, our supreme court held
that a defendant should be granted access to an “independent psychiatric expert” only after proving
a “particularized need” through showing that the facts and circumstances of his particular case would
require an expert in order to “insure a fair trial.” Barnett, 909 S.W.2d at 431. However, the
Defendant in this case provided only unsupported assertions that independent scientific experts may
have been helpful to his case. Thus, the Defendant failed to demonstrate that independent expert
testimony was “necessary” to insure he received a fair trial.

         Additionally, the facts in Scott are distinguishable from the Defendant’s case in several crucial
aspects: in Scott, our supreme court noted that “the State did not have an overwhelming case” against
the defendant; the victim “could not identify her attacker”; and “the DNA evidence appears to have
been the keystone of the State’s case.” Scott, 33 S.W.3d at 755. Conversely, in this case the trial
court characterized the evidence against the Defendant as “the state’s overwhelming proof”; the
victim did identify the Defendant as her attacker; and while the State utilized DNA evidence, it also
had direct evidence in the form of the victim’s testimony as well as a substantial amount of other
forensic circumstantial evidence that could properly be considered to “unerringly point the finger of
guilt to the defendant to the exclusion of all others beyond a reasonable doubt.” Hicks v. State, 490
S.W.2d 174, 178 (Tenn. Crim. App. 1972).

       Because we find the Defendant’s representation by Counsel was not deficient with regard to
Counsel’s election not to pursue independent investigation of the scientific evidence, we need not
address the Strickland prejudice prong. Accordingly, the Defendant has failed to prove by clear and
convincing evidence that he received representation that fell outside the range of reasonable
professional assistance. This issue is without merit.

                                        CONCLUSION
       Based on the foregoing reasoning and authorities, we affirm the judgment of the court denying
post-conviction relief.



                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




                                                  -11-
