          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                           JANUARY 1997 SESSION
                                                     February 24, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
CHAD SWATZELL,                       )
                                     )    NO. 01C01-9604-CC-00154
      Appellant,                     )
                                     )    WILLIAMSON COUNTY
VS.                                  )
                                     )    HON. HENRY DENMARK BELL,
STATE OF TENNESSEE,                  )    JUDGE
                                     )
      Appellee.                      )    (Post-Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN H. HENDERSON                         JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

C. DIANE CROSIER                          SUSAN ROSEN
Assistant District Public Defender        Assistant Attorney General
407C Main Street                          Cordell Hull Building, 2nd Floor
P.O. Box 68                               425 Fifth Avenue North
Franklin, TN 37065-0068                   Nashville, TN 37243-0493

                                          JOSEPH D. BAUGH, JR.
                                          District Attorney General
                                          Williamson County Courthouse
                                          Suite G-6
                                          P.O. Box 937
                                          Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                      OPINION



       The petitioner, Chad Swatzell, appeals the dismissal of his petition for

post-conviction relief filed in the Circuit Court of Williamson County. The

petitioner filed a petition for post-conviction relief based upon ineffective

assistance of counsel. The trial court dismissed the petition after a hearing. The

judgment of the trial court is affirmed.



                                           I.



       The petitioner was convicted by a jury of first degree murder, aggravated

assault with the intent to commit armed robbery, and second degree burglary

while in possession of a firearm. He was sentenced to an effective life term as a

Range I Standard Offender. The petitioner sought post-conviction relief alleging

ineffective assistance of counsel. Specifically, he alleges trial counsel failed to:

(1) move to suppress petitioner’s confession, (2) relay any plea offers from the

prosecution, and (3) properly investigate charges against the petitioner. An

evidentiary hearing was held, after which the court dismissed the petition, finding

petitioner’s trial counsel exceeded minimum constitutional levels of performance.



                                           II.



       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. 1995). 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. Dixon v. State,

934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial


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judge. 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. Black v. State, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Id.



                                        III.



       This Court reviews a claim of ineffective assistance of counsel 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 v. Washington, 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 v. State, 789 S.W.2d 898, 899

(Tenn. 1990).

       The test in Tennessee for determining whether counsel provided effective

assistance is whether the 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 v. Washington,

466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389

(Tenn. Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner

must show that counsel’s acts or omissions were so serious as to fall below an

objective standard of reasonableness under prevailing professional norms.

Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Goad v. State, 938

S.W.2d at 369.




                                         3
       In reviewing counsel's conduct, a "fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct

from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at

689, 104 S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt

the defense, does not, standing alone, establish unreasonable representation.

However, deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation. Goad v. State,

938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v.

State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



                                         IV.



       Petitioner’s parents initially retained Kentucky attorney, Marc A. Wells, to

represent their son. Because of her experience in criminal law, Mr. Wells

subsequently associated Tennessee attorney, Virginia Story. Mr. Wells

remained as co-counsel, assisting Ms. Story in the preparation of petitioner’s

defense.



                              A. Motion To Suppress

       At the evidentiary hearing, Ms. Story testified that she did not file a motion

to suppress the petitioner’s statement to police because she did not believe it to

be legally sustainable. The record shows the petitioner was read his Miranda

rights in the presence of his parents before being questioned. See Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966). The petitioner and

his parents were informed several times during the questioning that they could

request counsel at any time and questioning would cease until counsel arrived.

The record also shows the petitioner and his parents were asked if they

understood these rights, to which they responded affirmatively. After the

petitioner gave his statement, he and his parents reviewed and signed it. Ms.



                                          4
Story stated that after making an investigation of these facts, she believed the

petitioner’s only viable defense to be an insanity plea.



                                  B. Plea Offers

       Ms. Story further testified that she did not recall any plea agreements

being offered by the District Attorney General’s office. There was no testimony

offered by the petitioner to show that such an offer was ever made. The only

mention of a plea agreement by anyone involved came from the petitioner’s

mother. She stated Ms. Story briefly talked to them about plea negotiations, but

suggested that an insanity plea was a better defense. The trial court found there

was no evidence that any settlement offers were ever made by the state.



                            C. Pre-trial Investigation

       The petitioner claims that counsel was ineffective in failing to properly

investigate his case. Although counsel may not have thoroughly investigated the

crime scene, she concluded that it was not necessary given the circumstances of

this particular case (i.e., petitioner’s voluntary confession). Furthermore, there

has been no showing as to what a further investigation would have revealed;

thus, there has been no showing of prejudice. Counsel further testified that she

interviewed all possible witnesses in this case including all police officers, the

autopsy specialist, the psychiatrist, the psychologist, and several character

witnesses.



                             D. Trial Court Findings

       In its order denying the post-conviction petition, the trial court found the

petitioner’s counsel substantially exceeded the constitutional standard of

effective assistance. “[T]he Court is satisfied that defense counsel were

thoroughly prepared both with respect to anticipating the state’s evidence,

understanding the law applicable and the presentation of the evidence for the

defendant.” The evidence does not preponderate against these findings.



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                                        V.



      Petitioner’s counsel was presented with a difficult factual scenario. The

defense, although ultimately unsuccessful, was found by the trial court to be a

tactical decision based upon an informed opinion. We find the evidence does

not preponderate against the findings of the trial court. Accordingly, the

judgment of the trial court is AFFIRMED.




                                                __________________________
                                                JERRY L. SMITH, JUDGE




CONCUR:




_________________________
JOHN H. PEAY, JUDGE




_________________________
JOE G. RILEY, JUDGE




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