         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 5, 2002

                      BARRY DAVIS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Lauderdale County
                             No. 6551   Joseph H. Walker, Judge



                     No. W2001-01395-CCA-R3-PC - Filed March 8, 2002


The Defendant, Barry Davis, was convicted by a jury of first degree premeditated murder and
aggravated assault. His convictions were affirmed on direct appeal. See State v. Barry Davis, No.
02C01-9902-CC-00063, 1999 Tenn. Crim. App. LEXIS 845 (Jackson, Aug. 19, 1999). The
Defendant subsequently filed a petition for post-conviction relief, alleging that he received
ineffective assistance of counsel at trial. The trial court denied the Defendant’s petition and this
appeal followed. Finding no merit in the Defendant’s allegations, we affirm the judgment of the trial
court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER , JJ., joined.

D. Michael Dunavant, Ripley, Tennessee, for the appellant, Barry Davis.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The Defendant was convicted of murdering the victim by stabbing her fourteen times. He
complains that his trial counsel was ineffective in not filing a motion to suppress a statement he
made to the police; in failing to call certain witnesses at trial; in failing to adequately prepare him
for cross-examination; and in presenting an alternate theory of defense to his preferred theory of self-
defense. At the post-conviction hearing, both the Defendant and his trial counsel testified, as well
as two alleged defense witnesses who were not called at trial. After hearing the proof, the trial court
denied relief, finding that the decision not to call the alleged defense witnesses was a matter of trial
strategy based on an informed decision by trial counsel; that defense counsel did not err in not filing
a motion to suppress because there was no legal basis for the statement’s suppression, and the
Defendant was therefore not prejudiced by trial counsel’s decision; that the Defendant suffered no
prejudice by trial counsel’s presentation of an alternative theory of defense; and that the Defendant’s
claim that he was not adequately prepared for cross-examination was “not credible.”

        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. Tenn. Code Ann. § 40-30-
210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate 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 578-79.

        Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a 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). This
right to counsel includes the right to effective counsel. See Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936; Strickland v. Washington, 466 U.S. 668, 686 (1984).

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. See Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.
App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears
the burden of showing that counsel made errors so serious that he or she was not functioning as
counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced
the defendant resulting in a failure to produce a reliable result. See Strickland, 466 U.S. at 687;
Burns, 6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must
show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have
had reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.

        The record supports the trial court’s ruling in this case. The Defendant was convicted of the
first degree premeditated murder of the mother of two of his children. He stabbed the victim


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fourteen times, eight times in the back. He subsequently called the police to turn himself in, telling
the officer that he had killed the victim. This statement was made while the Defendant was not in
custody and was not made as the result of any questioning. Trial counsel correctly determined that
there was no basis on which to suppress this statement, and the Defendant’s complaint regarding this
decision is without merit.

        Given the number and location of the victim’s wounds, the Defendant’s trial counsel was
concerned that a jury would not accept his explanation of “self-defense,” and strove to present an
alternative theory that the killing had been committed in the heat of passion, and that the Defendant
was therefore guilty of voluntary manslaughter. This was a sound trial strategy, and one for which
we cannot fault trial counsel. The Defendant’s complaints in this regard are likewise without merit.
With respect to the two alleged defense witnesses who testified at the post-conviction hearing,
neither could testify as to what happened during the killing. One witness was aware of some vague
threats made by the victim some years prior to her death; the other witness testified that the victim
had told him at some point that if the Defendant did not stop doing what he was doing, she would
“stick him.” This proffered testimony was simply not sufficient to establish that the Defendant was
prejudiced by defense counsel’s decision not to call these witnesses.

        Defense counsel testified that she spent a considerable amount of time preparing the
Defendant for cross-examination, and that she informed the Defendant that he could be impeached
by his prior convictions. The Defendant denied this at the post-conviction hearing, but the trial court
found his testimony on this point “not credible.” We will not disturb findings of credibility on
appeal.

        The Defendant having failed to prove his allegations by clear and convincing evidence, he
is not entitled to post-conviction relief, and we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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