             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            OCTOBER 1997 SESSION
                                                          January 16, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
JOHN ERIC JOHNSON,                 )
                                   )
                   APPELLANT,      )
                                   )           No. 01-C-01-9611-CR-00470
                                   )
                                   )           Davidson County
v.                                 )
                                   )           J. Randall Wyatt, Jr., Judge
                                   )
                                   )           (Post-Conviction Relief)
STATE OF TENNESSEE,                )
                                   )
                    APPELLEE.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

John T. Conners, III                    John Knox Walkup
Attorney at Law                         Attorney General & Reporter
P.O. Box 1451                           500 Charlotte Avenue
Franklin, TN 37065-1451                 Nashville, TN 37243-0497

                                        Daryl J. Brand
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        William S. Johnson, III
                                        District Attorney General
                                        Washington Square, Suite 500
                                        222 2nd Avenue, North
                                        Nashville, TN 37201-1649

                                        D. Paul DeWitt
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 2nd Avenue, North
                                        Nashville, TN 37201-1649




OPINION FILED:____________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


         The appellant, John Eric Johnson (petitioner), appeals as of right from a judgment

of the trial court dismissing his action for post-conviction relief following an evidentiary

hearing. The trial court found the petitioner received the effective assistance of counsel

guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 9 of

the Tennessee Constitution. In this court, the petitioner contends the evidence contained

in the record preponderates against the findings of fact made by the trial court as the

evidence adduced at the evidentiary hearing established he was denied his constitutional

right to the effective assistance of counsel in the trial court and the appellate court. After

a thorough review of the record, the briefs submitted by the parties, and the law governing

the issues presented for review, it is the opinion of this court that the judgment of the trial

court should be affirmed.

         The petitioner was tried for first degree murder. The jury, as the trier of fact,

convicted the petitioner of second degree murder on November 2, 1993. The trial court

found the petitioner was a standard offender and imposed a Range I sentence consisting

of confinement for twenty-five (25) years on December 16, 1993. He appealed his

conviction and sentence to this court. A panel of this court affirmed both the conviction and

sentence. State v. Johnson, 909 S.W.2d 461 (Tenn. Crim. App.), per. app. denied (Tenn.

1995).

         This action for post-conviction relief was filed on August 18, 1995. The State of

Tennessee filed an answer on September 28, 1995. An amended petition was filed by

appointed counsel on January 5, 1996. A second amended petition was filed on January

30, 1996. The State of Tennessee filed an answer to the first and second amended

petitions on March 19, 1996. An evidentiary hearing was held on April 2, 1996. The trial

court filed its written findings of fact and conclusions of law on May 30, 1996.



                                              I.



         When the trial court has conducted an evidentiary hearing to permit a petitioner to


                                              2
ventilate the grounds raised in support of an action for post-conviction relief, the trial court’s

findings of fact are afforded the weight of a jury verdict. Dixon v. State, 934 S.W.2d 69,

71-72 (Tenn. Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim.

App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).

Consequently, this court is bound by the trial court’s findings of fact unless the evidence

adduced at the hearing preponderates against the trial court’s findings. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994), per. app. denied (Tenn. 1995).

       There are several well-established rules which govern appellate review in post-

conviction cases. As this court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990):


               First, this Court cannot reweigh or reevaluate the evidence; nor
               can we substitute our inferences for those drawn by the trial
               judge. Second, questions concerning the credibility of the
               witnesses, the weight and value to be given their testimony,
               and the factual issues raised by the evidence are resolved by
               the trial judge, not this Court. Third, the appellant has the
               burden in this Court of illustrating why the evidence contained
               in the record preponderates against the judgment entered by
               the trial judge.


       This court will now proceed to consider the merits of the petitioner’s contentions.

In doing so, this court will apply the aforementioned principles governing appellate review

in post-conviction actions to determine whether the evidence adduced at the hearing

preponderates against the trial court’s findings of fact. See Clenny v. State, 576 S.W.2d

12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d

1050 (1979).

                                               II.



       The petitioner contends “the Trial Court erred in ruling that trial counsel and

appellate counsel did not render ineffective assistance of counsel in violation of

Amendments 6 and 14 of the federal constitution and in violation of Article I, Sections 8

and 9 of the state constitution.” He argues trial counsel was deficient in the following

particulars:



                                                3
              (1)   In failing to conduct an adequate investigation;

              (2) In failing to insist that the Defendant himself choose a
              defense theory and whether or not to testify;

              (3)   In failing to choose a reasonable defense theory;

              (4) In advising the Defendant that the defense of self-defense
              and the defense that the shooting occurred under
              circumstances constituting only voluntary manslaughter could
              be developed in this case without the Defendant’s own
              testimony;

              (5) In failing to advise the Defendant that the defense of self-
              defense and the defense that the shooting occurred under
              circumstances constituting only voluntary manslaughter, could
              not be developed in this case without the Defendant’s
              testimony;

              (6) In advising the Defendant to not testify, after also advising
              the Defendant that the defense of self-defense and the
              defense that the shooting occurred under circumstances
              constituting only voluntary manslaughter, could be developed
              without the Defendant’s testimony;

              (7) In advising the Defendant to not testify, but then
              neglecting to advise the Defendant that by not testifying, the
              defense of self-defense and the defense that the shooting
              occurred under circumstances constituting only voluntary
              manslaughter, could not be developed;

              (8) In failing to object at the sentencing hearing to the Trial
              Court’s erroneous use of enhancement factor 13(C) of T.C.A.
              § 40-35-114, pertaining to a felony being committed while on
              probation for a felony.



The petitioner also contends “the Trial Court erred in ruling that the Defendant’s waiver of

his right to testify was not invalid in that it was not unknowing and unintelligent and

therefore not violative of Amendments 5 and 14 of the federal constitution and in violation

of Article I, Sections 8 and 9 of the state constitution.”



                                              A.



     When the petitioner seeks to vitiate a conviction on the ground the attorney who

represented him denied his constitutional right to the effective assistance of counsel, the

petitioner must establish by a preponderance of the evidence (a) the services rendered or

advice given by counsel fell below “the range of competence demanded of attorneys in

                                              4
criminal cases,” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the

unprofessional conduct of counsel enured to the prejudice of the petitioner. Williams v.

State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), per. app. denied (Tenn. 1980). The

United States Supreme Court subsequently adopted this two-prong test in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).             The Tennessee

appellate court decisions following Strickland are legion.

     This court’s review is guided by certain well-established standards. First, the standard

created in Baxter does not require perfect representation. Hellard v. State, 629 S.W.2d 4,

9 (Tenn. 1982). Second, it is not the function of an appellate court to “second guess” trial

counsel’s tactical and strategic choices pertaining to matters of defense unless these

choices were made without knowledge of the relevant facts or the law applicable to the

issue. Hellard, 629 S.W.2d at 9; McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim. App.),

per. app. denied (Tenn. 1983); see People v. Corona, 80 Cal. App.3d 684, 145 Cal. Rptr.

894 (1978).      As the supreme court said in Hellard: “[T]he defense attorney’s

representation, when questioned, is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d

at 9. Third, an accused is not deprived of the effective assistance of counsel because a

different procedure or strategy might have produced a different result. Williams, 599

S.W.2d at 279-80; Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied

(Tenn. 1974).



                                             B.



     The petitioner contends he was denied his constitutional right to the effective

assistance of counsel because counsel failed to properly investigate the facts of the case.

He argues counsel did not visit the situs of the murder. This was important because it

would have assisted in evaluating the believability of a theory of self-defense or a reduction

in the offense to voluntary manslaughter.

     The record establishes that counsel properly investigated the facts and circumstances

surrounding the crime alleged in the indictment. Counsel was familiar with the crime

scene. He had a diagram of the situs of the murder. He had obtained a copy of the



                                              5
preliminary hearing tape.

     Counsel had an investigator visit the scene to attempt to find witnesses.          The

investigator was a friend of the defendant’s family. While individuals would talk to the

investigator, they would not give their name or address. Every effort was made to establish

the petitioner’s innocence or have a jury find the petitioner guilty of a lesser included

offense.

     The problem facing defense counsel was not the investigation. It was testimony of

the defendant’s friend, Trotter, his brother-in-law, Crenshaw, and the petitioner’s wife.

These witnesses testified for the state. Trotter and Crenshaw testified they pleaded with

the petitioner not to shoot the victim. They saw the petitioner shoot the victim. Moreover,

the victim was unarmed. The petitioner’s wife testified the petitioner was armed when he

left his residence, and he admitted to her he had shot the man.

     Finally, the credibility of the petitioner as a witness posed a serious problem. He gave

a statement to the police that he was not present when the victim was shot. At trial, he

wanted to contend he shot the victim in self-defense.

     The trial court found defense counsel properly investigated the facts. The evidence

contained in the record does not preponderate against the trial court’s findings in this

regard.

                                             C.



     The petitioner contends defense counsel should have insisted that he, the petitioner,

choose the defense theory and whether he should testify in support of his defense. In

substance, the petitioner argues he should have made all of these decisions on his own.

He cites Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), in

support of his argument.

     The trial court found that defense counsel discussed with the petitioner possible

defense theories, including self-defense, voluntary manslaughter, and discrediting the

state’s witnesses, primarily Trotter, Crenshaw, and the petitioner’s wife.          Counsel

discussed the strengths and weaknesses of each defense theory, including how the

petitioner’s testimony would affect each theory. He explained to the defendant how the



                                             6
statement he gave to the police to the effect he was not present when the victim was killed

would reflect upon his credibility as a witness if he opted to testify he shot the victim in self-

defense or in the heat of passion. The petitioner advised defense counsel he was the

lawyer, he should make the decision, and present the defense accordingly. When the

state rested, a decision was made that the petitioner would not testify.

     The findings of the trial court are supported by the record. Therefore, the petitioner

is not entitled to relief on this ground.



                                               D.



     The petitioner contends defense counsel gave the defendant erroneous advice

regarding his need to testify in support of his defense. The trial court found defense

counsel discussed this very subject with the petitioner before and during the trial. The

petitioner opted to permit counsel to make these decisions.

     Defense counsel was able to develop numerous prior convictions and bad acts to

impeach the state’s main witnesses. He raised sufficient facts regarding self-defense and

the trial court gave an instruction to the jury on this defense.

     As previously stated, the petitioner was compromised as a witness. He gave a video-

taped statement to the police that he was not at the scene when the killing occurred. It

would be severely detrimental to the defense for the petitioner to testify he was at the

scene, he acted in self-defense, or he shot the victim in the heat of passion because of the

racial statements made by the victim. All of this was developed on cross-examination of

state witnesses.

     This court parenthetically notes the defendant does not cite any authority in support

of this argument. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Furthermore,

there is no reference to the record in support of this issue. Tenn. R. App. P. 27(a)(7) and

(g); Tenn. Ct. Crim. App. R. 10(b).           Consequently, this issue has been waived.

Nevertheless, this court has considered the issue and deems it is without merit.




                                                7
                                              III.



     The petitioner next contends the trial court erred in ruling that appellate counsel did

not render the ineffective assistance of counsel in violation of Amendments 6 and 14 of the

federal constitution and in violation of Article I, Sections 8 and 9 of the state constitution.

He argues appellate counsel was deficient because he failed “to raise as an appellate

issue the Trial Court’s erroneous use of enhancement factor (13)(C) of T.C.A. § 40-35-

114.”

     The trial court found that the record supported four enhancement factors and one

mitigating factor. The court applied the following enhancement factors to enhance the

petitioner’s sentence within the appropriate range: (1) the petitioner had a previous history

of criminal convictions and/or criminal behavior in addition to those convictions necessary

to establish the appropriate sentencing range, Tenn. Code Ann. § 40-35-114(1); (2) the

petitioner possessed and employed a firearm during the commission of the killing, Tenn.

Code Ann. § 40-35-114(9); (3) the petitioner had no hesitation about committing a crime

when the risk to human life was high, Tenn. Code Ann. § 40-35-114(10); and (4) the crime

was committed while on probation for a previous felony. Tenn. Code Ann. § 40-35-

114(13)(C). The court found one mitigating factor, i.e., the petitioner because of his youth

lacked substantial judgment in killing the victim. Tenn. Code Ann. § 40-35-113(6).

     Defense counsel raised two additional mitigating factors on appeal. It was contended

the petitioner acted under strong provocation, Tenn. Code Ann. § 40-35-113(2); and the

petitioner, although guilty of the crime, committed the offense under such unusual

circumstances that it is unlikely a sustained intent to violate the law motivated his conduct.

Tenn. Code Ann. § 40-35-113(11). This court rejected both of these mitigating factors.

     This court agrees with the position advanced by the state. Assuming arguendo the

trial court erroneously applied enhancement factor (13)(C) as the petitioner argues, the

petitioner has failed to established how he was prejudiced.           The fact a trial court

erroneously uses an enhancement factor does not equate to the reduction of a sentence.

See State v. Parker, 932 S.W.2d 945, 957 (Tenn. Crim. App.), per. app. denied (Tenn.

1996); State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995); State v. Keel, 882



                                               8
S.W.2d 410, 423 (Tenn. Crim. App.), per. app. denied, (Tenn. 1994).

     This court parenthetically notes no authority, except the applicable code section, is

cited to support the argument advanced in support of this issue. This constitutes a waiver

of the issue. Tenn. R. App. P. 27(a)(7). Nor is there a citation of the record contained in

the argument portion of the brief. Tenn. R. App. P. 27(a)(7) and (g); Tenn. Ct. Crim. App.

R. 10(b). Moreover, there is no evidence contained in the record which supports this issue

and the effect it may have had upon the trial court. Tenn. R. App. P. 24(b). Nevertheless,

this court has considered the issue upon the merits.

     This issue is without merit.




                                    ____________________________________________
                                          JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      WILLIAM M. BARKER, JUDGE



______________________________________
        JOE G. RILEY, JUDGE




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