             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 17, 2001 Session

               STATE OF TENNESSEE v. ALLAN PRESTON BROOKS

                     Direct Appeal from the Criminal Court for Davidson County
                                No. 90-W-80     Walter Kurtz, Judge



                            No. M2000-00909-CCA-R3-PC - Filed July 25, 2001


The appellant, Allan Brooks, appeals from the trial court’s denial of his petition for post-conviction
relief. The appellant claims that he was denied effective assistance of counsel due to trial counsel’s
failure to (1) demand a sequestered jury, (2) object to a display used by the prosecution during cross-
examination of the appellant, (3) object to the mention of the appellant’s first trial, and (4) seek an
interlocutory appeal of the trial court’s ruling regarding the testimony of Josh Peyton, the victim’s
six year old son.1 We find that the appellant received effective assistance of counsel and that his
claims to the contrary are without merit. The decision of the trial court is affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ, joined.

Jefre S. Goldtrap, Nashville, Tennessee, for appellant, Allan Preston Brooks.

Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Roger Moore, Assistant District Attorney, for
appellee, State of Tennessee.

                                                         OPINION

                                             FACTS
       On January 26, 1990, the appellant was charged with first degree murder, murder committed
during the attempt to perpetrate a felony, and burglary with the intent to commit murder of his
estranged girlfriend. The defendant was convicted by a jury of first degree murder and was acquitted


         1
          In his brief in supp ort of this app eal, the app ellant asks this cou rt to revisit alleged errors that were addressed
previously on direct ap peal. The trial court pro perly preclu ded the ap pellant from r aising such claim s at the post-
conviction hearing, and we will not address those issues in this opinion. See e.g., Morga n v. State , 1 Tenn. Crim. App.
454, 44 5 S.W .2d 477 (1969) ; see also H arvey v.S tate, 749 S.W .2d 478 (Tenn.C rim.App . 1987).
of the felony murder and burglary charges. The murder conviction was subsequently reversed, and
the case remanded for a new trial based on the trial court’s error in jury instructions regarding
deliberation and premeditation. State v. Brooks, 880 S.W.2d 390, 393 (Tenn.Crim.App. 1993). At
the second trial, the defendant was found guilty of first degree murder and sentenced to life
imprisonment. On October 29, 1998, this court affirmed that conviction and, on April 19, 1999,
permission to appeal to the Tennessee Supreme Court was denied. State v. Allan Brooks, Davidson
County, No. 01C01-9510-CC-00324 (Tenn.Crim.App., filed October 29, 1998, at Nashville).

                                              ANALYSIS
        Under the Post-Conviction Procedure Act, the appellant bears the burden of proving his
allegations by clear and convincing evidence. Tennessee Code Annotated § 40-30-210 (f). Factual
findings made by the trial court are binding upon this court unless the evidence preponderates against
them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993). Questions concerning the credibility of
witnesses and the weight given the testimony of witnesses are resolved by the trial court. Bates v.
State, 973 S.W.2d 615, 613 (Tenn.Crim.App. 1997).
        The standards by which ineffectiveness of counsel is judged in Tennessee are set forth in
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), which requires that the advice given, or the
services rendered by the attorney, be within the range of competence demanded of attorneys in
criminal cases. The rule devised by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), provides:
        First, the defendant must show that counsel's performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel's errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable. Unless the defendant makes
        both showings, it cannot be said that the conviction or ... sentence resulted from a
        breakdown in the adversary process that renders the result unreliable.

         The findings of fact of the trial judge on post-conviction hearings are conclusive on appeal
unless the evidence preponderates against the judgment. Vermilye v. State, 754 S.W.2d 82, 84
(Tenn.Crim.App.1987); Turner v. State, 698 S.W.2d 90, 91 (Tenn.Crim.App.1985); Janow v. State,
4 Tenn.Crim.App. 195, 470 S.W.2d 19, 21 (1971). Furthermore, the Tennessee Supreme Court has
stated that “it cannot be said that incompetent representation has occurred merely because other
lawyers, judging from hindsight, could have made a better choice of tactics.” Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982); see also, United States ex rel. Burton v. Cuyler, 439 F.Supp. 1173, 1187
(E.D.Pa.1977). A review of the record in this case does not convince us that the proof preponderates
against the judgment entered by the trial court denying post-conviction relief.
                                          1. Jury Sequestration
         First, the appellant contends that his trial counsel was ineffective by failing to request a
sequestered jury despite the appellant’s repeated demands that such a request be made. Trial counsel
testified at the post-conviction hearing that he requested jury sequestration at a pretrial conference
before Judge Kurtz, who then informed him that shorter recesses and longer days would be used to


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increase the speed of the trial to accommodate the jurors if they were sequestered. As an alternative,
Judge Kurtz suggested that the jurors be kept together while in the Courthouse and be frequently
“admonished” to avoid outside influences. Mr. Herbison testified that he took this proposal to his
client, who agreed. The trial court accredited Mr. Herbison’s testimony and found that he did not
act ineffectively. The evidence does not preponderate against that finding.
        Furthermore, the trial court found that even if counsel’s actions fell below the professional
standard, there is no evidence of prejudice. The appellant, Mr. Brooks himself testified that there
is no evidence that any juror was exposed to prejudicial publicity or extraneous information. Judge
Kurtz stated that to his recollection, this was not a high visibility case.
        The evidence supports that trial court’s finding that counsel’s actions regarding the
sequestering of the jury did not amount to ineffective assistance of counsel, and the defendant was
not prejudiced. This issue is without merit.
                                       2. Prosecution’s Display
        The appellant next contends that the prosecution misrepresented a note written by the
defendant while the prosecution was re-writing the note on a display board at trial; and that his trial
counsel’s failure to object amounted to ineffective assistant of counsel. The contents of the note are
unclear from the record. Counsel testified at the post-conviction hearing that the Assistant District
Attorney prosecuting Mr. Brooks made a grammatical error in writing the note, and that Mr. Brooks
pointed out and corrected the error during his testimony. Counsel stated that he took no action
because he felt Mr. Brooks “made the point pretty effectively himself.” The trial court further stated
        [H]ow the district attorney’s mischaracterization of that during the argument could
        have affected the verdict here escapes me, and there is certainly no proof of that, and
        no indication that Mr. Herbison should have done anything other than what he did
        do.”

        The evidence presented by the appellant does not preponderate against the trial court’s
finding that trial counsel provided effective assistance in regard to the prosecution’s display of the
note. The appellant’s contention to the contrary is without merit.
                                 3. Mention of Appellant’s First Trial
        The appellant also contends that counsel was ineffective due to his failure to object to the
mentioning of the appellant’s first trial by the prosecutor during the second trial. This contention
is contrary to the testimony presented at the post-conviction hearing.
        Trial counsel testified at trial that the assistant district attorney prefaced one of her questions
to Mr. Brooks during cross-examination by referencing the previous trial. This was the only mention
of the previous trial during the second proceeding. Counsel further testified that he immediately
asked for a side bar and moved for a mistrial. Due to problems with the recording equipment, a
record of the side bar was not produced. The record contains an “unintelligible” notation.
        No evidence was presented by the appellant to rebut trial counsel’s testimony. The trial court
found no evidence that the verdict was effected in any way by the isolated mentioning of the prior
proceeding and that the appellant had failed to present any evidence of deficient representation.
        The evidence presented by the appellant does not preponderate against the trial court’s
finding that trial counsel provided effective assistance in regard to the isolated mentioning of the
previous proceeding. The appellant’s contention to the contrary is without merit.


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                                         4. Interlocutory Appeal
        The appellant’s final contention is that he was denied effective assistance of counsel due to
trial counsel’s failure to seek an interlocutory appeal of the trial court’s decision to allow the
testimony of Josh Peyton, the six year old son of the victim and eye-witness to the murder. The
record does not support the appellant’s contention.
        Trial counsel testified at the post-conviction hearing that, prior to trial, he filed a motion in
limine with regard to the child’s testimony. Counsel also testified that the trial court conducted a
hearing outside the presence of the jury to determine the child’s competency to testify. The hearing
took place on the fourth day of the trial, and an interlocutory appeal was not sought, according to trial
counsel because there was not time. The appellant presents no evidence that counsel’s decision fell
below the reasonable standard of competency that attorneys are held to in criminal cases, other than
the bare assertion that an interlocutory appeal should have been sought.
        Furthermore, the appellant presents no evidence that he was prejudiced by trial counsel’s
decision or the trial court’s ruling. In fact, trial counsel testified that the child’s testimony supported
the appellant’s defense in many ways. Counsel also testified that he was able to cross-examine the
child fully. This court will not second guess the trial strategy of trial counsel if that strategy is based
upon adequate preparation. Hellard, 629 S.W.2d at 9. While other attorney’s may have sought an
interlocutory appeal, that does not mean that trial counsel’s actions were deficient in any way.
                                             CONCLUSION
        The evidence does not preponderate against the findings of the trial court. We find that the
appellant received effective assistance of counsel. The judgment of the trial court is AFFIRMED.




                                                         ___________________________________
                                                         JERRY L. SMITH, JUDGE




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