        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE

                        JANUARY SESSION, 1999


JAMES R. BOYD,               )   C.C.A. NO. 01C01-9802-CR-00057
                             )
      Appe llant,            )
                             )
                             )   DAVIDSON COUNTY
VS.                          )
                             )   HON. WALTER C. KURTZ
STATE OF TENNESSEE,          )   JUDGE
                             )
      Appellee.              )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

ROBERT J. MENDES                 JOHN KNOX WALKUP
Cummins Station, Suite 507       Attorney General and Reporter
209 T enth Av enue S outh
Nashville, TN 37203              KAREN M. YACUZZO
                                 Assistant Attorney General
GLENN DUKES                      425 Fifth Avenu e North
306 Gay Street, Suite 400        Nashville, TN 37243
Nashville, TN 37201
                                 VICTOR S. JOHNSON
                                 District Attorney General

                                 NICHOLAS BAILEY
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222 Se cond A venue N orth
                                 Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION
        This is an ap peal a s of righ t pursu ant to R ule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant, James R. Boyd, appeals from the order

of the trial court denying him post-conviction relief. We affirm the denial of relief

by the trial co urt.



        In February of 1991, the Defendant was convicted by a jury of first degree

murder and was sentenced to life in prison. On direct appeal to this Court in

1993, we affirmed the trial court’s decision, and the Tenn essee Su preme C ourt

denied permission to appeal on October 3, 1994.1 The D efend ant su bseq uently

filed a petition for post-conviction relief, which was denied by the trial c ourt in

January of 1996. He then filed a notice of appeal to this Court. By order dated

July 3, 1997 , this Cou rt reman ded the matter to the trial court “for a factual finding

regarding [the Defendant’s] contention that his trial counsel failed to communicate

the state’s plea offer.” On remand, the trial court concluded that trial counsel had

comm unicated the State ’s plea offe r to the De fendan t.



        The Defendant contends that he received ineffective assistance of counsel

at trial. He arg ues tha t his coun sel was in effective for fa iling to: (1) com munic ate

a plea offer; (2) request a jury instruction on self-defense; (3) call “certain material

witnesses” to testify; and (4) inform him regarding the possible penalties for first

degree m urder. 2



        1
         State v. James R. Boyd, No. 01C01-9109-CR-00281, 1993 WL 488322 (Tenn. Crim.
App., Nashville, Nov. 24, 1993).
         2
             We address the Defendant’s arguments in a different order than that presented in
his brief.

                                             -2-
       For an und erstand ing of the testimony a nd issue s raised a t the post-

conviction hearing , we find it nec essary to briefly sum marize the even ts

unde rlying th e Def enda nt’s present conviction.3 Before the death of the victim,

Rick L. Lemay, the Defendant and the victim maintained a somewhat turbulent

relationship. They met through a mutu al friend , and s hortly th ereafte r, the victim

began to mak e freque nt trips to the Defen dant’s ap artmen t. The two developed

a friendship and often drank together. The victim, who was characterized at trial

as an alcoholic, often became excessively intoxicated, which led to several

encou nters with th e Defe ndant.



       On one occasion in the summer of 1989, the victim became intoxic ated

while visiting the Defendant, and the Defendant dec ided to take him to the

victim’s mother’s home , where the victim was then living. Upon arriving, the

Defendant assisted the victim into his bedroom and then attempted to leave. The

victim, who w anted to rem ain with the De fenda nt, resis ted, tryin g to follow the

Defendant back to his car. The victim’s moth er testifie d that s he wa tched while

the Defendant hit her son on the shoulders in an attempt to subdue him.4 The

victim then jumped on the hood of the Defendant’s car while the motor was

running. The Defendant yanked the victim off the car and shoved him into a

chaise lounge on the porch before rushing back to his vehicle to leave.



       On another occ asion, just eleven d ays before the victim’s death, the victim

stopped by the Defendant’s apartment for a vis it. While the two men drank


       3
           The facts are summarized from the opinion of this Court on direct appeal. For a
more detailed account of the facts, see State v. James R. Boyd, No. 01C01-9109-CR-00281,
1993 WL 488322 (Tenn. Crim. App., Nashville, Nov. 24, 1993).
       4
           At trial, the Defendant denied hitting the victim.

                                              -3-
together, the victim expr essed a desire to move in to the Defe ndant’s a partme nt,

but the Defendant refused the request. This apparently angered the victim, and

a struggle ensued. According to the Defendant, the victim “swung” at him, and

he respo nded by twistin g the vic tim’s arm b ehind his back and tra nspo rting him

to the door, where he pushed the victim out of the apartment. The victim began

to bang on the door, and the Defen dant ca lled the po lice. While the Defendant

waited for the police to arrive, the victim crashed through his front window and

attacked him, a ttemp ting to c hoke him. T he De fenda nt was able to subdue the

victim and again pushed him out the door. Again, the victim attempted to come

into the apartment through the front window, and the Defendant informed him that

if he did so, he “wou ld have to hurt him .” The police arrived shortly thereafter.



      Sergeant Steve Reed, who responded to the call, testified that when he

arrived at the apartment, there were indications inside that a struggle had taken

place. Accord ing to Reed, the Defendant told him that he “didn’t want [the victim]

in his apartment, and that if he were to try to gain entry again he would shoot

him.” Ho wever, the Defen dant de nied m aking an y such sta temen t.



      The Defe ndan t agree d to pro secu te the vic tim for his actions and for the

damage done to his apartment. The victim was arrested and taken to jail that

night, and the Defendant obtained a warrant against the victim for the damage

done to the apa rtment. A court d ate was set, but the Defen dant failed to appear,

and the warrant was therefore dismissed.



      The next and final encounter between the victim and the Defendant

occurred on October 18, 1989, the date of the victim ’s death. At trial, the

                                        -4-
Defendant described the events that transpired on October 18 as follows: That

night, while the Defendant was alone in his apartment, the victim began knocking

on the Defendant’s door and calling his name. The Defendant testified that he

recognized the victim’s voice and did not respond. He stated that there was

“some guy” with the victim w ho he never actua lly saw. The Defendant testified

that there was simultaneous banging on his front door and on the back bedroom

window .



       The Defendant called the victim’s mother at approximately 12:30 a.m., 5 told

her that the victim “was no longer welcome in [his] ho me a nd [he ] didn’t w ant him

over there anymo re,” and th reatene d to call the p olice. She told him to call the

police if he found it necess ary. The victim’s moth er, who also te stified a t trial,

claimed that during their conversation, the Defendant told her, “I’m drunk as he

is but I’m n ot acting c razy as h e is.”



       According to the Defendant, he called the police, and during the

conversation, he he ard “a c rash in the be droom windo w.”                   He went to his

bedroom to retrieve his pistol and then went into the spare bedroom where he

had heard th e crash . He testified, “at that time, I saw the venetian blinds raise

up, as though someone were coming through the window. So I said, ‘[I]f you

come through the win dow, I’m going to sho ot.’”                  At th at poin t, the victim

appa rently retreated. The Defendant stated that he next heard banging on the

front door, went to the door, “shook the doorkn ob,” and said “I’ve got a gun and

I’m comin g out.” He stated tha t when he o pened the door, he saw a car drive




        5
            The time of the call was reported by the victim’s mother, who also testified at trial.

                                               -5-
away and saw the victim. The Defendant testified, “[The victim] bent down, as

though he was going to pick up a we apon. A nd whe n he raise d up, I sho t him.”

He testified that he feared for his life because of the previous incident that

occurred shortly before the night of the crime.



      Upon arriving at the a partm ent, the police found the victim lying to the right

of the Defendant’s front door and the Defendant standing in the doorway. The

Defendant admitted that he shot the victim. The victim, who died before police

arrived, sustained several bullet wounds—five entry wounds and two exit

wounds. Three of the wounds w ere in his back. N o weapo ns were found in the

vicinity of the body, and no blood was fou nd on th e inside fa cing of the door to the

apartm ent, indicating that the door was shut when the victim was shot. Aside

from the broken bedroom window, there were no signs of a struggle inside the

apartm ent.



      At trial, Annie Cannon, the Defendant’s upstairs neighbor, testified that she

was awakened on the night of the victim’s death to the sound of knocking on the

Defe ndan t’s bedroom window and that she heard the victim saying, “James, let

me in; James I love you.” She recalled that she heard the sound of a window

breakin g and th en hea rd a gun shot.



      At the post-conviction hearing, Annie Cannon testified that on the night of

the shooting, she saw a black male inside a car ou tside her a partme nt with the

victim. On direct examination, she stated that although she was never contacted

by the defense at the time of trial, she would have been ava ilable to testify.

Howeve r, on cross-examination, she admitted that she had spoken on the phone

                                         -6-
prior to trial with one of the defense attorneys, and she testified that she indicated

to the attorn ey that sh e didn’t pa rticularly care for the De fendan t.



       Carl Pulley , a pros ecuto r in this case, testified that plea negotiations were

“heightened” in this case and that the State made a number of offers to the

Defendant prior to trial. He stated that the Defendant was “ava ilable and presen t”

during the tim es tha t the pro secu tors co mm unica ted offe rs to the Defe ndan t’s

attorney. Pulley testified, “So he was fully aware of what the offers were.” He

testified that on the night prior to trial, the prosecutors offered the Defendant six

years in return for a plea of volun tary manslau ghter.          He testified that M r.

Thompson, the Defendant’s attorney, replied that he “could not speak on be half

of his client tha t evenin g,” and therefo re waite d to res olve the matte r until

mornin g.



       Glenn Dukes, the Defendant’s attorney for the post-conviction proceedings,

testified that he co ntacted Pulley wh ile preparin g for the ca se. He m aintained

that Pulley “state[d] that he clearly rem embere d a six-year offer in return for a

plea of voluntarily [sic] manslaughter was made on the night before the trial and

at Mr. Thompson’s home.         He stated that Mr. Thompson rejected the offer

sum marily . . . . He also stated that [the Defendant] was not there and there was

[sic] no con versation s betwe en them .”



       Cath leen Bush, the Defendant’s sister, testified that she went to the

Defe ndan t’s apartment on October 18, 1989 after the shooting. She stated that




                                            -7-
while she was there, “a lady upstairs”6 approached her and told her “that the

other guy got away.”       She also testified that she accompanied her brother

numerous times to meet with the Defendant’s attorneys before the trial. She

stated that neither she nor her brother was ever made aware of the six-year offer

in return for a plea of volun tary manslau ghter.



       The Defendant also testified at the post-conviction hearing. He stated that

at the time of the crime he was employed as a counselor for abused and runaway

teenagers at the Midd le Tenn essee Mental H ealth Institute . With regard to the

night of the murder, the Defendant testified that the victim was accompanied by

another man, w ho was bangin g on his fro nt door w hile the victim attemp ted to

enter his bedroom window. He claimed that there were “footprints on the door

when [it was] checked,” which he maintained verified his version of events. He

stated, “when I walke d out o n the fro nt porc h of m y apar tmen t is when I saw the

man a nd he w as threa tening m e.”



       In addition, th e Defe ndant te stified that B rett Thompson, his trial coun sel, 7

did not inform him th at he c ould receive a life sentence if he were convicted. He

claimed, “There was no indication that a jury would convict me, that I would be

incarcerated or given a life sentence in prison. . . . Nobody told me that I was

facing a life senten ce for self-d efense.” He claimed that Thompson did not

explain the plea bargaining process to him and that he was never informed of the

six-year offer for a plea of voluntary m anslaughte r. How ever, d espite his claim


        6
             She stated that the woman was not Annie Cannon. However, she could not
otherwise identify the woman.
       7
          The other attorney that represented the Defendant at trial, Carlton Petway, was
deceased at the time of the post-conviction hearing.

                                           -8-
that he did not understand the plea bargaining process, he admitted that he had

previous ly been in c ourt six time s for misd emea nor cha rges.



       The Defendant further testified that Thompson’s attitude changed when he

became unable to make payments for his legal services. The Defendant stated,

“[Thompson] brought me to court in front of [the judge] and asked to be removed

from the case because I wasn’t being cooperative. Wh en he said I wasn’t being

cooperative, that means he wasn’t getting the mone y that he a sked for.” In

addition, he sta ted tha t he ne ver told any of th e attorn eys invo lved in th e trial-

neither the pros ecutors nor the d efense attorneys—th at he w ould n ot ente rtain

plea-b argain offers o r that he only wa nted a trial.



       In contrast to the Defe ndant’s te stimon y, Thom pson te stified that h e felt

“absolutely” sure that the Defendant made an informed, conscious decision to go

to trial. He state d that he d iscusse d with the D efendant the indictment, the

discovery process, the D efendant’s tape d stateme nt to police, legal strategy—

including how recent changes in the law could affect his case, the range of

punishment for the crime with which the Defendant was charged, and the

possible consequences of going to trial.          He stated that Petway, the other

defense counsel, “m ade it very clear” to the Defendant that his chances of

winning on a theory of self-defense were “50/50.” Thompson also testified that

negotiations with the prosecu tor regarding po ssible pleas “we re substantial.” He

maintained that the Defendant seemed to understand both the six-year offer and

the poss ible consequences of refusing the offer, and he testified that he told the

Defendant that the six-year offer was “a good offer.” In addition, he testified that




                                          -9-
the Defendant “was present” in his office at the time that Pulley communicated

the State ’s final offer of six ye ars and that the D efenda nt rejected the offer.



       Thompson also testified that he filed twelve or thirteen motions in limine,

hired a detective to investigate the crime scene, and indicated that although he

“paid out over ten thousand [dollars],” he “never received even 10 percent of” the

fifteen thousand d ollars 8 that the Defe ndan t agree d to pa y for his representation.

He reported that he did file a motion to withdraw as counsel, “not because of

mone y,” but beca use th e Def enda nt “wou ld not c oope rate, he either w asn’t

presen t, he was late or he w ould c all at the last m inute a nd sa y that he wasn ’t

going to com e.”



       With regard to trial strategy, Thompson testified that he saw Annie Cannon

at the scene of the crime, that the investigator who he hired interviewed Ms.

Cannon and reported back details of the interview to him, and that he believed

that Petway, his co-counsel, had also interviewed Cannon. He reported that

Annie Cannon was not called as a witness because “she was really one of the

major hostile witnesses.” Although he admitted that self-defense was a “crucial

eleme nt” of the case, he stated that he “could not recall off the top of [his] head”

why no ju ry instruction on self-de fense w as given .



       Finally, Thompson admitted that he was no longer practicing law because

he had been suspended approximately one year after this case for

misappropriation of trust funds. He also admitted that he had recently been



       8
           The actual fee included “expenses up to twenty thousand dollars.” Thompson later
stated that he eventually received “roughly twelve fifty on the case.”

                                           -10-
charged with misappropriation in a case which was still pending at the time of the

post-conviction hearing. He explained that it was simply a case of “oversight and

neglec t” and that the checks at issue in the case had been signed “by somebody

in [his] office.”



       In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 93 6 (Ten n. 1975). To succeed on a claim that his counsel was

ineffective at trial, the Defendant bears the burden of showing that his counsel

made errors so serious that he was not functioning as counsel as guaranteed

under the Sixth Amendment and that the deficient representation prejudiced the

Defen dant, resulting in a failure to pro duce a reliable res ult.     Strickland v.

Washington, 466 U.S. 668, 687 (1984); Coop er v. State , 849 S.W.2d 744, 747

(Tenn. 1993); Butler v. State, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the

second prong, th e Defe ndant m ust show a reaso nable p robability tha t, but for

coun sel’s unreasonable error, the fact find er wou ld have had re ason able doubt

regarding his guilt. Strickland, 466 U.S. at 695. This re ason able probability must

be “sufficient to undermine confidence in the outc ome.” Harris v. S tate, 875

S.W.2d 662, 665 (Tenn. 1994) (citing Strickland, 466 U.S. at 69 4).



       When reviewing trial counsel’s actions, this Court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors shou ld

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper 849 S.W.2d at 746.

                                        -11-
             I. COMMUNICATION OF THE SETTLEMENT OFFER

      The Defendant first a rgues th at his cou nsel wa s ineffective for failing to

communicate to him the State’s offer of six years for a plea of voluntary

manslau ghter, and he thus contends that the trial court’s ruling on the matter was

erroneous.   He ar gues that the court’s ruling is “against the weight of the

evidence.”



      If afforded a post-conviction evidentiary hearing by the trial co urt, a

petitioner must do m ore than m erely present evidence tending to show

incompetent representation and prejudice; the petitioner must prove factual

allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1974) (superseded by Tennessee Code Annotated § 40-30-

210(f) (requiring clear and convincin g eviden ce)). When an evidentiary hearing

is held, findings of fact made by that court are conclusive and b inding on this

Court unless th e eviden ce prep ondera tes aga inst them. Coop er v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te, 789 S.W.2d 898, 899

(Tenn. 19 90)).



      On rem and, the trial court de termine d that

      [t]he petitioner’s testimony is not credible given his attendance at
      several settlement dock ets in w hich h is lawyer s discu ssed poss ible
      plea agreem ents with th e prose cutor; his attendance at a meeting
      in his lawyers [sic] office whe re the pro secu tor’s [sic] were present
      and the testimony of his trial attorney. The Court credits trial
      counsel that the plea offer was co nveyed to the p etitioner.



      After a thorough review of the record, we conclude that the evidence does

not preponderate against the trial court’s finding that the six-year offer was



                                       -12-
conveye d to the Defendant. At the post-conviction proceeding, Thompson, the

Defe ndan t’s trial counsel, refuted the Defendant’s claim that he was not informed

of the six-y ear offe r; and te stimo ny by P ulley, the prose cutor a t trial, large ly

substantiated Thompson’s assertion. We conclude that this matter is simply one

of credibility, which was properly resolved by the trial court.           This issue is

therefore without m erit.



                              II. JURY INSTRUCTION

       The Defendant next argues that his coun sel was in effective for fa iling to

request a separate jury instruction on self-defense.            He states, “This is a

particu larly glaring error because the defense relied heavily, if not entirely, upon

the theory of self-defen se.”



       W e note that the followin g jury ins truction was g iven at tr ial:

              Included in the Defendant’s plea of not g uilty is his plea that
       he was acting in defense of his home or habitation. When an
       assault or attempted forcible entry is made against a home or
       habitation, unde r said circumstances that would create in the mind
       of a lawful occupant a well-founded and reasonable belief that he is
       in present and imminent danger of death or grea t bodily harm at the
       hands of the attacker, o r that the atta cker inten ds to commit a felony
       therein, then a lawful occupant of a dwelling can use such
       reaso nable force as is necessary, including deadly fo rce, to prevent
       the intrusion.
              Words alone, no matter how objec tionab le or as saultin g, will
       not justify the taking of a huma n life. A pers on is und er no du ty to
       retreat in his own home, Even [sic] if he can safely do so, but may
       stand his ground and use reasonable force to prevent or stop an
       invasion of his home or habitation.
              In determining whether the Defenda nt’s us e of forc e in
       defending his home or habitation was reasonable, you may consider
       not only his actua l use o f force, b ut also all the facts and
       circumstances leading up to it. Additio nal fac tors to c onsid er in
       deciding whether the use of force was reasonable include any
       previous threats of the decea sed m ade kn own to the Defendant; the
       character of the deceased for violence when known to the
       Defen dant; the animosity of the deceased for the Defendant, as

                                          -13-
       revealed to the Defendant by previous acts and words of the
       deceased; and the manner in which the parties were armed, and
       their relative strength and sizes.
              If, from all the facts and circumstances in the case, you have
       a reasonable doubt whether the Defenda nt acted in the ne cessary
       defense of his home or habitation, then you must find the Defendant
       not guilty.



       With regard to this instruction, the trial judge made the following findings

at the post-conviction proceeding:

       First of all, the instructions, there m ay be some minor difference
       between the instructions on defense of a person and the defense of
       the habita tion. Bu t I don’t th ink it rea lly matte rs in this case because
       it seems to me that the legal principles protect the de fenda nt equ ally
       as we ll.
               And then if you look at Judge Summe r’s [sic] analysis of the
       facts in this case . . . on direct appeal, I don’t think that you can
       come to any other conclusio n. Eve n if there is som e distin ction it
       would n’t matter. But it seemed to me that the defe nse of a
       habitation was be neficial to the defens e. He relie d on it and if I
       recall, the main argume nt and his ma in pos ition wa s hey, I w as in
       my house; this guy was attacking my house. And that instruction
       was given to the jury. And if th ey belie ved tha t it was a case of s elf-
       defense I think th ey wou ld have found in the defendant’s favor; they
       didn’t.



       W e acknowledge, as the State points out, that “the petitioner’s theory of

self-defense was en tertwined [sic] with his theory of defend ing his hom e.” We

also note that the instructio n which was given does include some language

concerning the defense of one’s person and thus allowed the jury to consider the

Defe ndan t’s contention that both he and his property were threatened by the

victim’s behavior. Under the circumstances of this case, the instruction given was

sufficient to allow the jury to fully co nside r the D efend ant’s th eory o f defen se, if

it had indeed found the facts to be favorable to the Defendant’s position.




                                           -14-
      Howeve r, assuming that Defendant’s trial counsel erred by not requesting

an instruction specifically addressing self-defense, we conclude that the

Defendant has not shown any prejudice resulting from the omission of such an

instruction. Numerous times throughout the trial, Defendant’s coun sel clea rly

advanced a theory of self-defense as a defense for the Defendant’s actions. As

the trial court concluded, the jury apparently rejected the theory. The Defendant

simp ly has not convinced us that a more thorough instruction would have

changed the outcome in this case in view of the instruction given concerning

defense of house or habitation.




                                      -15-
                                    III. WITNESSES

       Third, the Defendant argues that his counsel was ineffective for failing to

call “certain m aterial witne sses” to te stify at trial. In his brief, h e states,

       By failing to investig ate or ta lk to An nie Cannon and by failing to act
       or even attempt to act on the information that Kathleen [sic] D. Bush
       offered, defense counsel did not present crucial corroborating
       testimony for the jury’s consideration. . . . The evidence of material
       witnesses who were never interviewed by the defense but, because
       they lived directly above the scen e of the incide nt, cou ld have easily
       been fo und. These witnesses also w ould h ave pr ovided favora ble
       testimony for the defense, had the defense only contacted them.



       With regard to this issue, th e trial court m ade the following find ings:

              The other person; I just never remember that as a big issue
       in the trial. I mean, I don’t know that the State even contested the
       fact that there was another person there at the time. The fact is that
       Mr. Boyd went out there on the front porch and shot the victim.
       There was no testimony of Mr. Boyd that he felt eminently [sic] or
       imm ediate ly threatened by this other person and he shot th e victim
       because this other person was also attacking him. . . . [W]hile that
       other person m ay have had something to do with approaching the
       house, it didn’t have anything to do with th e direct im media te
       shooting of the victim . And I just d on’t find an y problem s there.



       Annie Cannon testified that she was contacted by at least one member of

the defense team, and she admitted that she told the person with whom she

spoke that she did not like the Defendant. Thompson testified that Cannon was

not called as a w itness beca use “s he wa s really o ne of th e ma jor hos tile

witnesse s.”   As previo usly stated , this Court should not use the benefit of

hindsight to second-guess trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). At the time of trial, Thompson determined

that Cannon would not have made a beneficial witness for the defense, and we

have been presented with no evidence to conclude otherwise. With regard to the

other “materia l witnesse s” that lived a bove the Defen dant, we conclude that aside

                                           -16-
from testimo ny by th e Def enda nt’s siste r that sh e spo ke with an un identified

woman on the night of the crim e, the De fendan t has pro duced no evide nce to

show that any of these witnesses exist or that they would have provided

beneficial testimon y to the de fense a t trial. This issue is the refore with out me rit.



                IV. PENALTIES FOR FIRST DEGREE MURDER

       Finally, the Defend ant argues tha t his counsel failed to inform him of the

poss ible penalties for first degree murder. At the post-conviction proceeding, the

Defendant claimed that his attorney did not discuss the poss ible penalties for the

crime with which he was charged and testified that he ha d no id ea tha t he wo uld

be convicted or sentenced to life in prison.



       At the po st-convictio n hearin g, the trial judg e conc luded,

       Petitioner . . . contends that he didn’t know first-degree murder was
       punis hable by a life sentence. I find that not really credible. I mean,
       even if the defense lawyer didn’t tell him, that’s the kind of
       information folks pick up even if th ey don ’t hang around the criminal
       justice system. That’s the kind of information you get from the
       newspa pers and TV. And surely when you are charged w ith first-
       degree murde r you kno w you are in real, real big trouble.



       Desp ite the Defendant’s claim, Thompson testified quite emphatically that

he believed th e Defe ndant m ade a fu lly informed decision to go to trial, and

Thompson specifically stated that he discussed with the Defendant the range of

punishment for first degree murd er. Ag ain, we conc lude th at this is a matter of

credibility for resolution by the trial judge, and based upon a thorough review of

the record before us, we are unconvinced that the trial judge erred by determining

that Defendant’s counsel informed him of the possible penalties for first degree

murde r.

                                          -17-
       W e thus con clude tha t the Defendant has not shown that he received

ineffective assistance of counsel at trial.           Accordingly, the denial of post-

conviction relief by the trial c ourt is affirm ed.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                           -18-
