            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         OCTOBER 1998 SESSION
                                                       December 7, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
ROBERT TERRY CROWSON,            )
                                 )    C.C.A. NO. 01C01-9802-CC-00077
            Appellant,           )
                                 )    Bedford County
V.                               )
                                 )    Honorable W illiam Charles Lee, Judge
STATE OF TENNESSEE,              )
                                 )    (Post-Conviction)
            Appellee.            )



FOR THE APPELLANT:                   FOR THE APPELLEE:

Hershell D. Koger                    John Knox Walkup
Attorney at Law                      Attorney General & Reporter
131 N. 1st St.
P.O. Box 1148                        Lisa A. Naylor
Pulaski, TN 38478                    Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     William Michael McCown
                                     District Attorney General

                                     Robert Crigler
                                     Assistant District Attorney General
                                     One Public Square, Suite 100
                                     Shelbyville, TN 37160




OPINION FILED:____________________



AFFIRMED


PAUL G. SUMMERS,
Judge
                                               OPINION



            The petitioner was convicted by a jury of second degree murder and

sentenced to eighteen and one-half years incarceration. His conviction and sentence

were upheld on direct appeal. See State v. Robert Terry Crowson, No. 01C01-9503-

CC-00086 (Tenn. Crim. App. filed Feb. 13, 1996, at Nashville). In July 1997, the

petitioner filed for post-conviction relief alleging ineffective assistance of counsel at

both his trial and on appeal. After a hearing the court below dismissed the petition,

from which ruling the petitioner now appeals. 1 Upon our review of the record, we

affirm the judgment of the post-conviction court.



            In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by clear and convincing evidence. See T.C.A. § 40-30-

210(f). Furthermore, the factual findings of the trial court in hearings “are conclusive

on appeal unless the evidence preponderates against the judgment.” See State v.

Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



            The petitioner contends that his trial counsel was deficient in failing to

investigate his mental condition, failing to interview and call two witnesses at trial,

failing to put on proof that the victim had a knife, and failing to move to suppress the

petitioner's statement. In reviewing the petitioner’s Sixth Amendment claim of

ineffective assistance of counsel, this Court must determine whether the advice given

or services rendered by the attorney are within the range of competence demanded of

attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

To prevail on a claim of ineffective counsel, petitioner “must show that counsel’s


        1
         On this appeal, however, the petitioner limits his argument to his trial counsel. Accordingly, any
contention regard ing his appellate cou nsel has been w aived. See T.C.A. § 40-30 -206(g).

                                                     -2-
representation fell below an objective standard of reasonableness” and that this

performance prejudiced the defense. There must be a reasonable probability that,

but for counsel’s error, the result of the proceeding would have been different. See

Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708

S.W.2d 421, 422 (Tenn. Crim. App. 1985).



         This Court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation,

see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); and counsel should not be

deemed to have been ineffective merely because a different procedure or strategy

might have produced a different result. See Williams v. State, 599 S.W.2d 276, 280

(Tenn. Crim. App. 1980).



         The reviewing court found that the only proof as to the petitioner's mental

condition was the petitioner's own testimony that he had told his attorney before trial

that he “wanted to see a psychiatrist” and thought he “should be admitted into a

hospital.” The court found that this “bare assertion” by the petitioner, uncorroborated

by any independent proof that he had been suffering from some mental defect at the

time of trial, was insufficient to carry his burden of proof. W e agree. This issue is

without merit.



         As to the witnesses that defense counsel allegedly failed to interview and

call at trial, these persons testified at the post-conviction hearing. The court below

found,

         If anything, some of the statements that were made by the
         witness[es] today would have been detrimental to the
         defendant at trial. And counsel was probably -- not only was
         he not deficient in not calling those witnesses, he probably


                                        -3-
          exercised [a] wise tactical decision in not calling the
          witnesses because they would have been more detrimental
          than helpful to the petitioner's cause.

We agree. This issue is without merit.



          The petitioner also contends that his trial lawyer was ineffective because he

did not present testimony that the victim had been wielding a knife at the time the

petitioner killed him. At his post-conviction hearing, the petitioner testified that the

victim had attacked him with a knife. However, he admitted on cross-examination to

having testified at trial that the victim had not had a knife and that a knife was not

involved. Moreover, the petitioner presented no proof at the post-conviction hearing

(other than his own testimony) that the victim had threatened or attacked him with a

knife. Obviously, the petitioner's attorney could not pursue this line of defense under

these circumstances. Indeed, as found by the hearing court,

          If the defendant testified at trial there was not a knife and the only
          [other testifying] . . . eye-witness . . . testified there wasn't a knife
          involved, what was counsel to do? He can't fabricate something
          that is just not there.

          Today the defendant says there was a knife. He is the only one
          that says that.

This issue is without merit.



          Finally, the petitioner contends that his lawyer was ineffective in not moving

to suppress his statement. Inexplicably, the hearing court failed to make any findings

with respect to this allegation. The petitioner testified at his post-conviction hearing

that he had told his attorney he had been “coerced into signing” a statement he had

given to an assistant district attorney and a detective shortly after he shot the victim.

Specifically, he testified

          When I was brought in for questioning after leaving the hospital
          from being sew[n] up, Mr. Reed was questioning me and I told him


                                              -4-
            a little bit of what happened. Then I advised him that I wanted my
            right to an attorney to be present before I say any more. He then
            said well, you have told more or less the story. He said but you
            need to go ahead and finish it and sign this statement. I told him
            that I wanted an attorney present.

            That is when this other gentleman I didn't know at the time said I
            needed to sign the statement.
            ...
            He stood up and said yeah, you need to tell us what happened and
            you need to tell us now. I asked the gentleman, I said what if I
            don't? He said well, I'm a district attorney, Gary Jones, and I will
            give you the F-ing chair if you don't sign the statement.

According to the petitioner, he signed the statement because of this threat by the

assistant district attorney. He further testified that when he told his trial counsel about

this, his lawyer “told [him] that [he] shouldn't say anything about the coercion.”



            Neither of the law enforcement officials involved in taking the petitioner's

statement testified at the post-conviction hearing; neither did the petitioner's trial

counsel. However, this Court found on the direct appeal of the petitioner's case that

“Detective Reed recounted the circumstances surrounding the statement given by the

defendant on the morning after the killing. He stated that he advised the defendant of

his rights and that the defendant responded that he was able to talk.” The remainder

of Detective Reed's testimony recounted what the petitioner had told him and how it

differed from the petitioner's testimony at the preliminary hearing. Apparently, the

petitioner's written statement was not introduced at trial. 2

            Detective Reed's testimony at trial about what the petitioner had told him

was summarized by this Court as follows:

            The defendant told Detective Reed that he, his mother and Mr.
            Pinkston had gotten into an argument over who would drive home
            from the bar the night before. They were still arguing when they
            returned home and the victim told the defendant not to cuss their


        2
         This Court's opinion on direct appeal makes no reference to the petitioner's written statement. At
the post-conviction hearing, the assistant district attorney, who also tried the case, told the court below that
“There was no written stateme nt by the defendant intro duced as evid ence in the trial.”

                                                       -5-
         mother. The victim hit the defendant and a fight ensued that lasted
         about three minutes. The defendant told Detective Reed that he
         wanted to get his mother's pistol from her bedroom in order to
         scare the victim. He remembered his mother warning the victim as
         he walked to the back bedroom for the gun. The defendant told
         Detective Reed that he thought the victim had a gun in his car. The
         defendant went to the bathroom to wipe his face and returned to
         the living room. He told Detective Reed that his mother always
         kept the pistol loaded.

         Initially, the defendant told Detective Reed that the victim returned
         to the trailer and began fighting with him again. Later, the
         defendant said that the victim was in the front doorway when a
         struggle began and that he shot the victim while the victim was on
         top of him. He told Detective Reed that he tried to revive the victim
         with CPR for about twenty minutes and finally told Mr. Pinkston to
         call 911. When asked what happened to the gun, he reported that
         Mr. Pinkston took the gun away from him and hit him in the head
         with it after he shot the victim.

This Court further summarized the petitioner's own testimony at trial:

         The defendant testified that he, his mother and Mr. Pinkston went
         to a local bar and drank <a lot of beer' in the evening of November
         6, 1993. They arrived home and began drinking again. The
         defendant stated that the victim had been arguing with him when
         the defendant's girlfriend arrived. He stated that they were sitting
         there when <the next thing I know I get hit upside the head.' He
         testified that the victim hit him with the heating element and hit him
         more than once with his fist. He stated that the victim pointed his
         finger at him and threatened him before going outside. He testified
         that he went to his mother's room to get her pistol because he was
         scared that the victim had gone to get his .32 pistol from his car.
         He recalled that as he looked out the window of the door, the victim
         pushed the door open and began assaulting him again. He could
         not recall how the pistol was fired but testified that he did not
         intentionally pull the trigger and shoot the victim. He stated that the
         gun fired during the scuffle. He testified that he tried to perform
         CPR on the victim and finally called 911. He said that this was the
         worst that the victim had ever beaten him and that he was terrified
         of the victim.

Thus, both the petitioner's oral statement to Detective Reed and his own trial

testimony stressed his fight with and fear of the victim, making out a theory of self-

defense. That is, the petitioner's trial testimony was essentially consistent with his

earlier statement to the police. On the record before us, therefore, we do not see how

Detective Reed's testimony about the petitioner's statement prejudiced him at trial.



                                           -6-
Accordingly, even if trial counsel was deficient in not attempting to suppress the

petitioner's statement,3 we find that he was not thereby prejudiced. This issue is

without merit.



            The judgment of the post-conviction court is affirmed.




                                                  ______________________________
                                                  PAUL G. SUMMERS, Judge


CONCUR:




________________________________


      3
          We do not imply that he was.

                                            -7-
JOSEPH M. TIPTON, Judge




________________________________
JOE G. RILEY, Judge




                                   -8-
