           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        FEBRUARY 1999 SESSION
                                                    FILED
                                                       April 19, 1999

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
JOHN R. ROBINSON,               )
                                )    C.C.A. NO. 02C01-9809-CC-00297
           Appellant,           )
                                )    DECATUR COUNTY
VS.                             )
                                )    HON. C. CREED McGINLEY,
STATE OF TENNESSEE,             )    JUDGE
                                )
           Appellee.            )    (Ineffective Assistance of Counsel)



FOR THE APPELLANT:                   FOR THE APPELLEE:


STEVE BEAL                           JOHN KNOX WALKUP
22 Monroe St.                        Attorney General & Reporter
Lexington, TN 38351
                                     J. ROSS DYER
                                     Asst. Attorney General
                                     Cordell Hull Bldg., 2nd Fl.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     ROBERT RADFORD
                                     District Attorney General

                                     JERRY WALLACE
                                     Asst. District Attorney General
                                     P.O. Box 637
                                     Parsons, TN 38363




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION


              The petitioner was found guilty by a jury of two counts of first degree murder

and one count of arson. He was subsequently sentenced to life without parole for each

murder conviction and a term of two years for the arson conviction. These sentences

were to run consecutively.       On direct appeal, this Court affirmed the petitioner’s

convictions and sentences.        The petitioner subsequently filed a petition for post-

conviction relief, which was dismissed by the trial court. The petitioner now appeals and

argues that he did not receive the effective assistance of counsel. After a review of the

record and applicable law, we affirm the judgment of the trial court.



              The petitioner was convicted of the double homicide of Janice and Timmy

Barnett. At the post-conviction hearing, an attorney, D. D. Maddox, testified that he was

contacted by the petitioner’s wife, Mrs. Robinson, with regard to the pending murder

charges against her. Mr. Maddox testified that he visited the petitioner in jail and

informed the petitioner that he would be representing Mrs. Robinson. Mr. Maddox told

the petitioner that he would represent the petitioner until another attorney was appointed.

According to Mr. Maddox, he never spoke with the petitioner about any of the facts

surrounding the murders. Mr. Maddox then wrote a letter to the sheriff of Decatur County

stating, “I will represent [the petitioner] in the investigative stage of this case. I expect he

will receive a court-appointed lawyer . . . but prior to that appointment I want you to advise

all law enforcement officers . . . that [the petitioner] is not to be questioned about any

matter concerning this case . . . .” Mr. Maddox continued to represent Mrs. Robinson

after the petitioner received a court-appointed attorney.



               The petitioner’s trial attorney, Richard DeBerry, also testified at the post-

conviction hearing. He testified that during the course of the trial, he and his co-counsel

tried to have Mrs. Robinson’s testimony excluded on the basis of Mr. Maddox’s initial


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representation of the petitioner and Mrs. Robinson. Mr. DeBerry also testified that he

examined the petitioner’s claim that another man, Mike Woody, had actually committed

the crime. According to Mr. DeBerry, he investigated Mr. Woody’s alibi and could not find

any witnesses to confirm or discredit the alibi. Mr. DeBerry admitted that samples had

been taken from the crime scene with regard to fingerprints, hair, and clothing, but no

tests had been performed on these samples. Mr. DeBerry claimed that part of his trial

strategy was to raise doubt in the minds of the jury with the fact that these samples had

been taken by the Tennessee Bureau of Investigation yet were never tested. Mr.

DeBerry also claimed that he did not request a change of venue in this highly publicized

case because he hoped that the jury would be aware of the reputation of Mr. Woody,

which might lend credence to the defense’s theory of innocence.



                   The defendant now contends that the trial court erred in dismissing his

petition for post-conviction relief on the grounds that he did not receive the effective

assistance of counsel. Under the Post-Conviction Procedure Act of 1995, the petitioner

has the burden of proving the factual allegations in his petition by clear and convincing

evidence. T.C.A. § 40-30-210(f). 1 Furthermore, the factual findings of the trial court in

hearings “are conclusive on appeal unless the evidence preponderates against the

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



                  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. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective assistance of counsel, a petitioner “must show that counsel’s

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


         1
          Con trary to the p etition er’s c onte ntion , as h is pet ition w as file d afte r Ma y 10, 1 995 , it is
govern ed by the P ost-Co nviction Pr ocedu re Act of 1 995. See T.C.A. § 40-30-201 Compiler’s Notes.

                                                           3
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. Strickland v.

Washington, 466 U.S. 668, 687-88 (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,

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. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.

1980).



              The petitioner contends his trial counsel was ineffective based on several

arguments. The petitioner first argues that his counsel should have had the hair and

blood samples taken by the Tennessee Bureau of Investigation independently tested.

The petitioner contends that he told his attorneys that these samples “would or could be

exculpatory.” However, at the post-conviction hearing, Mr. DeBerry testified that his

decision not to test these samples was a trial tactic. He testified that the samples had

been withdrawn by the State without being tested, a fact that was made known to the jury

in an effort “to build up doubt in the case.”



              As stated previously, this Court will not second-guess trial counsel’s tactical

and strategic choices unless those choices were uninformed. In the case at bar, the

petitioner’s attorney made a tactical decision in an effort to discredit the State’s case.

The petitioner has failed to show that this decision fell below an objective standard of

reasonableness. In addition, the petitioner has failed to show that his attorney’s failure

to have the samples independently tested prejudiced the defense. There is no evidence

in the record that such tests would have revealed exculpatory information. As such, the

                                                4
petitioner has failed to prove this allegation by clear and convincing evidence. This

contention is without merit.



              The petitioner next contends that his trial counsel was ineffective for failing

to “properly test the testimony of Mike Woody.” In addition, the petitioner claims that

witnesses who might have countered Mr. Woody’s alibi were not presented at trial. At

the post-conviction hearing, Mr. DeBerry testified that he explored Mr. Woody’s alibi and

was unable to find any witnesses to credit or discredit his alibi. Mr. DeBerry testified that

he was able to locate the log books kept at the club where Mr. Woody claimed to have

been at the time of the murders. Mr. Woody’s name did not appear on the log book on

the night of the murders and Mr. DeBerry used that fact at trial to attempt to discredit Mr.

Woody’s alibi. There is no evidence that any other witnesses existed that could have

discredited Mr. Woody’s alibi. In light of the foregoing, the petitioner has failed to

establish that his trial counsel’s representation was substandard that this performance

prejudiced the defense. As such, this contention is without merit.



              The petitioner contends that his trial counsel was ineffective for failing to

contact the Tennessee disciplinary counsel with regard to Mr. Maddox’s representation

of the petitioner and Mrs. Robinson in the preliminary stages of this case. The petitioner

asserts such joint representation caused a conflict of interest that led to Mrs. Robinson’s

waiver of spousal immunity. Mr. DeBerry testified that he filed a motion to exclude Mrs.

Robinson’s testimony on the basis of Mr. Maddox’s supposed conflict of interest. This

motion was denied by the trial court. On direct appeal of this case, this Court affirmed

the trial court’s finding that Mr. Maddox did not receive confidential information from the

petitioner and no attorney/client privilege was ever established between Mr. Maddox and

the petitioner. State v. John R. Robinson, No. 02C01-9501-CC-00024, Decatur County

(Tenn. Crim. App. filed December 13, 1995, at Jackson). Notwithstanding this, the

petitioner has failed to prove there is a reasonable probability that but for his trial

                                             5
counsel’s failure to file a complaint with the appropriate disciplinary board, the result of

the proceeding would have been different. In light of the foregoing, this contention is also

without merit.



              The petitioner further contends that his trial counsel was ineffective for

failing to file a motion for a change of venue due to the high profile of the case. At the

post-conviction hearing, Mr. DeBerry testified that his failure to file a motion for a change

of venue helped advance his theory of the case. According to Mr. DeBerry, Mr. Woody

was to be implicated in the murders and that theory “would be more sustainable in

[Decatur] county than somewhere else where [Mr. Woody] was maybe unknown. It’s just

a tactic we decided on.” As the defendant has failed to show that this tactic was

uninformed due to inadequate preparation or that his defense was prejudiced by the

decision not to file for a change of venue, this contention is without merit.



                 Accordingly, we affirm the trial court’s dismissal of the petitioner’s post-

conviction petition.



                                                    ______________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



_________________________________
JOE G. RILEY, Judge



_________________________________
JAMES C. BEASLEY, SR., Special Judge




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