            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                          MARCH 1998 SESSION



JERRY LEE FINCH,            *      NO. 02C01-9707-CC-00293

             Appellant,     *      LAUDERDALE COUNTY

VS.                         *      Hon. Joseph H. W alker, Judge

STATE OF TENNESSEE,

             Appellee.
                            *

                            *
                                   (Post-Conviction)
                                                            FILED
                                                               June 4, 1998

                                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

For Appellant:                     For Appellee:

D. Michael Dunavant                John Knox Walkup
Bank of Ripley Building            Attorney General & Reporter
P.O. Box 150
Ripley, TN 38063                   Elizabeth T. Ryan
                                   Assistant Attorney General
                                   Cordell Hull Building, 2nd Floor
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Elizabeth T. Rice
                                   District Attorney General

                                   Mark E. Davidson
                                   Assistant District Attorney General
                                   302 Market Street
                                   Somerville, TN 38068



OPINION FILED:




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Jerry Lee Finch, appeals as of right from a judgment of

the trial court dismissing his petition for post-conviction relief. The single issue

presented for our review is whether the petitioner was denied the effective

assistance of counsel. We find no error and affirm the judgment of the trial court.



              The petitioner was convicted of aggravated robbery and sentenced as

a Range II, multiple offender to twenty years. This court affirmed on direct appeal.

State v. Jerry Lee Finch, C.C.A. No. 02C01-9309-CC-00224 (Tenn. Crim. App., at

Jackson, June 7, 1995). Our supreme court denied permission to appeal. Later,

the petitioner filed a timely petition for post-conviction relief and was appointed

counsel. The trial court conducted an evidentiary hearing and denied relief.



              In this appeal, the petitioner contends the evidence preponderates

against the trial court's findings that he was afforded effective assistance of counsel.

He argues the evidence adduced at the evidentiary hearing shows that trial counsel

failed to properly investigate his case, failed to contact alibi witnesses, and failed to

object to the phrase "moral certainty" in the jury instruction on reasonable doubt.



              The trial judge's findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. Butler v. State,

789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354

(Tenn. Crim. App. 1994). The trial court’s findings of fact are afforded the weight of

a jury verdict, and this Court is bound by the trial court’s findings unless the

evidence in the record preponderates against those findings. Henley v. State, 960

S.W.2d 572, 578 (Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim.

App. 1996). This Court may not reweigh or reevaluate the evidence, nor substitute


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its inferences for those drawn by the trial judge. Henley, 960 S.W.2d at 579;

Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794

S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of

witnesses and the weight and value to be given to their testimony are resolved by

the trial court, not this court. Henley, 960 S.W.2d at 579; Black, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley, 960 S.W.2d at 579; Black, 794 S.W.2d at 755.



              A claim of ineffective assistance of counsel is reviewed under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

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

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive him

of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler, 789 S.W.2d at 899.



              The test in determining whether counsel provided effective assistance

is whether his performance was within the range of competence demanded of

attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner

must overcome the presumption that counsel’s conduct falls within the wide range of

acceptable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065;

State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).



              The petitioner has asserted that his counsel failed to locate and

present alibi witnesses at trial. At the evidentiary hearing, the petitioner testified that

prior to trial he provided his trial counsel with the name of his brother who saw him


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washing a car in Ripley at the time the robbery occurred in Henning. The petitioner

also testified that he informed his attorney that several young men were playing

basketball across the street while he was washing the car, but that he did not know

their names.



               At the post-conviction hearing, the petitioner’s brother, Lee Andrew

Finch, testified that when he arrived home between 4:30 and 5:00 p.m. on the date

in question, his brother was in the driveway washing a car. The petitioner’s brother

claimed that he was never contacted by anyone from the public defender’s office in

advance of the trial. Lee Finch also testified he did not attend his brother’s trial

because he did not know when it was held. During questioning by the trial judge,

Lee Finch remembered his brother was washing the car on a Tuesday. In fact, the

robbery was committed on a Wednesday. No other potential alibi witnesses testified

at the post-conviction hearing.



               The assistant district public defender, Julia Pillow, testified that she

tried to develop an alibi defense. She explained, however, that the store clerk had

identified the petitioner as the robber from a photograph. The petitioner’s juvenile

accomplice testified against him as well. Ms. Pillow stated that prior to the trial she

asked an investigator from the public defender’s office to locate the petitioner’s

brother and any other possible alibi witnesses. None could be found. Ms. Pillow

explained to the court that it was her practice to note in her case file if witnesses

could not be located. She believed that since her file did not indicate the witnesses

could not be located, the witnesses were contacted but not helpful to the petitioner.



               The record of the original trial indicates that the trial court held a jury-

out conference at the conclusion of the state’s proof. The petitioner stated that he


                                              4
did not wish to testify. He confirmed that he had discussed potential defenses with

his trial counsel and was satisfied with her representation, including the efforts to

locate potential witnesses. He specifically acknowledged the investigator

“attempted to contact some people and ... [was] not able to come up with anything in

that regard.”



                The trial court observed that after the arrest and during the course of

the investigation by the defense, the petitioner’s brother did not offer to serve as an

alibi witness. Moreover, he did not come forward at trial or within the days following

the guilty verdict. In rejecting the petition, the trial court noted that the petitioner's

brother came forward several years after the conviction; and even then the

petitioner’s brother testified as to the wrong date. In summary, the trial court

rejected the authenticity of the belated claim. In our view, the evidence does not

preponderate against the findings of the trial court.



                In addition to his contention about the failure to adequately investigate

and present alibi witnesses, the petitioner further asserts that trial counsel was

ineffective by failing to object to the “moral certainty” language in the jury instruction

on reasonable doubt. The petitioner concedes, however, that the use of the phrase

is insufficient, standing alone, to invalidate the instruction. See Carter v. State, 958

S.W.2d 620, 626 (Tenn. 1997). He does argue that the instruction coupled with his

counsel’s failure to investigate and call alibi witnesses, resulted in representation

which fell below acceptable standards. We disagree. In our assessment, trial

counsel was not ineffective for failing to object to this portion of the jury charge.



                Accordingly, the judgment of the trial court is affirmed.




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                                              Gary R. Wade, Judge

CONCUR:


(see below)
Joe B. Jones, Presiding Judge




Jerry L. Smith, Judge




      Honorable Joe B. Jones died May 1, 1998, and did not participate in this
Opinion. We acknowledge his faithful service to this Court, both as a member of the
Court and as its Presiding Judge.




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