            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                FILED
                          MAY SESSION, 1999
                                                          September 9, 1999

                                                      Cecil Crowson, Jr.
JAMES PHILLIP HUNTER,     )      C.C.A. NO. 01C01-9805-CR-00216
                                                    Appellate Court Clerk
                          )
      Appellant,          )
                          )
                          )      DAVIDSON COUNTY
VS.                       )
                          )      HON. SETH NORMAN
STATE OF TENNESSEE,       )      JUDGE
                          )
      Appellee.           )      (Post-Conviction)




FOR THE APPELLANT:               FOR THE APPELLEE:

THOMAS F. BLOOM                  PAUL G. SUMMERS
500 Church Street         Attorney General & Reporter
5th Floor
Nashville, TN 37219              CLINTON J. MORGAN
                                 Counsel for the State
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 VICTOR S. JOHNSON
                                 District Attorney General

                                 KYMBERLY HAAS
                                 Assistant District Attorney
                                 Washington Square, Ste. 500
                                 Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                          OPINION




       The petitioner, James Phillip Hunter, appeals the order of the Davidson County

Criminal Court denying his petition for post-conviction relief. The petitioner is presently

serving a life sentence as a result of his conviction for premeditated first degree murder in

1993. In 1997, the petitioner filed a post-conviction petition alleging, inter alia, ineffective

assistance of trial counsel. The trial court found no merit to any of the petitioner’s claims

and accordingly denied the petition. On appeal, the petitioner claims that he received

ineffective assistance of counsel at trial and on appeal. After a thorough review of the

record before this Court, we affirm the trial court’s judgment.



                                               I.



                                           A. Trial

       In 1993, the petitioner was convicted after a jury trial for the premeditated murder

of Dewey Slanton. His conviction was affirmed by this Court on appeal. State v. James

Phillip Hunter, C.C.A. No. 01C01-9404-CR-00154, Davidson County (Tenn. Crim. App.

filed January 11, 1996, at Nashville), perm. to app. denied (Tenn. June 3, 1996). We recite

the relevant facts as set out by this Court on direct appeal:

              On January 8, 1993, Teresa Smoot was celebrating the birthday of
       her husband, Michael Smoot, at their residence. Ms. Smoot’s brother,
       Ronald Fann, and the victim, Dewey Slanton, were present. Michael Smoot
       and the victim were drinking beer. The four watched television for a time
       before deciding to go to the Odyssey Club, where Ms. Smoot worked as a
       dancer. On their way, they stopped at a liquor store, where Ms. Smoot’s
       husband and brother bought a “little bottle of something.” The victim had
       also gone inside the store but did not purchase anything. The group
       continued their celebration at the club for a time, then took the victim home
       because he had to work the next day.

             The other three decided to visit another club, the Brass Stables, but
       changed their minds on the way and drove towards the Smoot home. As
       they entered the alley leading to their driveway, Ms. Smoot saw the victim,
       who lived in the neighboring apartments, looking over his shoulder and

                                              -2-
       motioning for her to stop. Ms. Smoot yelled, “Wait a minute,” and was pulling
       into her driveway to park the car when she heard a gunshot. She then saw
       the defendant, who appeared to have something like the butt of a gun on his
       “back side,” standing toward the front of her house. As she backed the car
       into the alley, she saw the victim clutch his stomach and chest and fall to the
       ground. Ms. Smoot ran to the victim, placed a pillow under his head and
       covered him with her coat and a blanket. Michael Smoot called 911; Ms.
       Smoot joined in the conversation, telling the dispatcher that the defendant
       had shot the victim. The defendant, who lived in the same apartment
       complex as the victim, went to his sister’s house right after the shooting; he
       returned to his apartment a few minutes later.

               Ms. Smoot, who conceded that the victim was a close friend, testified
       that he was not drunk. She stated that the victim had previously told her that
       he “had words” with the defendant over Debra Ryman, the victim’s
       ex-girlfriend and a niece to the defendant.

....

              Susan Franks, of the Metropolitan Nashville-Davidson County Police
       Department, was the first officer to arrive at the scene of the shooting. The
       victim, wrapped in a blanket, appeared to be unconscious. Officer Franks
       learned that Smoot and Fann suspected the defendant as the assailant.
       When the ambulance arrived, she looked for evidence in the nearby
       apartment complex. A door to one of the apartments, that belonging to the
       victim, was open. The apartment was in disarray and there were two
       gunshot holes in the living room wall. As Officer Franks knocked on the door
       to the adjacent apartment, she saw that the door to a third apartment was
       open, investigated, and found the defendant sitting calmly inside. The
       defendant told Officer Franks that he had been asleep when the victim
       kicked in the door to his apartment and hit him in the jaw. He stated that he
       then took a shotgun from underneath his bed and shot the victim. Officer
       Franks found no cuts, bruises, or abrasions on the defendant and
       determined that the door had been kicked from the inside out, rather than the
       outside in.

....

               Homicide Detective Mike Roland took a statement from the defendant.
       The defendant, who described himself as nervous and upset, contended that
       after he had been attacked by the victim, he got his gun and went to the
       doorway of his apartment. While there, he fired two or three times at the
       victim who, by then, had fled some distance away but was coming back
       toward him. The defendant claimed that when he saw the victim fall, he put
       his gun away and went to his sister’s house to call authorities. The
       defendant maintained that he had no idea why the victim initiated the attack.
       He asserted that he generally tried to stay away from the victim because, in
       part, the victim drank heavily and became violent when he did so.

....

               Dr. Mona Harlan, a forensic pathologist with the Davidson County
       Medical Examiner’s Office, conducted the autopsy. She stated that the
       victim suffered multiple pellet wounds which extended from slightly above his

                                             -3-
       knees to the top of his head. There was no stippling of the skin near the
       wound. That led Dr. Harlan to conclude that the victim had not sustained the
       gunshot wound from close range. She estimated that at least fifteen feet
       would have separated the victim and the defendant when the victim was
       shot. The victim had abrasions on his hand, knee, and forehead, which Dr.
       Harlan believed could have been the product of a physical altercation, the
       victim’s fall to the ground, or from pellets which had not penetrated the skin.
       Dr. Harlan also found that the victim's blood alcohol level was .14.

....

              The defendant, a sheet metal worker, testified that he had lived in his
       apartment at 128 Rains Road for approximately six months when the
       shooting occurred. He stated the victim lived in a nearby apartment with his
       niece and that they would occasionally invite him to eat dinner there. The
       defendant claimed that he and the victim had never had problems until the
       day of the shooting.

               He testified that the victim had several guests at his apartment
       drinking that day. One of the guests had made a “smart” remark to the
       defendant, but the defendant claimed that he had ignored the comment.
       When he returned to his apartment, he turned on the television and fell
       asleep on the couch. The defendant claimed that the next thing he
       remembered was a loud banging at his door. When he answered, the victim,
       who smelled strongly of alcohol, struck him in the side of the face. The
       defendant contended that the victim, who had previously bragged about his
       fighting prowess, hit him about fifteen times. He testified that he retrieved his
       shotgun from underneath his bed only after he was hit in the back of the
       head; when he did so, the victim stood in the bedroom doorway and cursed
       at him. He maintained that the victim was only about fifteen or twenty feet
       outside the apartment by the time the shotgun had been loaded. The
       defendant claimed that the shotgun started “going off” only after the victim
       reached for something in his back pocket. He stated that he had not aimed
       his weapon before firing.

State v. James Phillip Hunter, supra, slip op. at 3-11.

                               B. Post-Conviction Hearing

       At the post-conviction hearing, the petitioner complained of trial counsel’s failure to

thoroughly investigate his case prior to trial. He testified that although he had only a ninth

grade education, his attorney required him to make all of the decisions regarding trial

strategy. The petitioner stated that his attorney never reviewed the state’s case with him

nor did he discuss trial strategy with him. He further claimed that his attorney only visited

the crime scene once, which was on the second day of trial. The petitioner testified that

counsel did not independently contact defense witnesses, and the only time counsel spoke

with the petitioner’s proposed witnesses was when the petitioner brought them to counsel’s

                                             -4-
office. He stated that trial counsel did not attempt to have scientific tests performed on any

of the state’s physical evidence.

       The petitioner testified that he informed his attorney about his prior criminal record,

including his prior arrests. He further stated that trial counsel was aware of the victim’s

prior criminal record as well as his propensity for violence.

       George Duzane represented the petitioner at trial. Duzane testified at the post-

conviction hearing that he had been practicing law since 1979, and at the time of trial

approximately 30%-35% of his practice consisted of criminal cases. He stated that he

spoke with the petitioner on many occasions concerning the state’s case against him.

Although he did not hire a private investigator, he spoke with the police officers

investigating the case several times. He reviewed all of the discovery provided to him, filed

various pretrial motions and visited the crime scene at least twice. Duzane testified that

the petitioner made the decision as to which witnesses to call on his behalf, and he

interviewed every witness that the petitioner suggested. However, he acknowledged that

many of the defense witnesses offered testimony which was contrary to their respective

statements to law enforcement authorities.

       Because the petitioner claimed that he killed the victim in self-defense, Duzane

attempted to present evidence of the victim’s violent tendencies, especially after he had

been drinking. However, the trial court would not allow him to present such testimony.

Duzane admitted that he was able to elicit some testimony concerning the victim’s prior

convictions as well as his past violent behavior.

       In a written order, the trial court found that the petitioner had not presented sufficient

evidence supporting his claim that trial counsel was ineffective. The trial court concluded

that trial counsel did not provide deficient representation, and the petitioner had not

established how he was prejudiced by any of the alleged deficiencies. As a result, the trial

court denied the petition for post-conviction relief.




                                              -5-
       From the trial court’s order denying post-conviction relief, the petitioner now brings

this appeal.



                                             II.



          The petitioner argues that he received ineffective assistance of counsel in many

   respects. First, he claims that trial counsel erroneously failed to question him during

   his direct testimony regarding his knowledge of specific acts of violence committed by

   the victim. He asserts that counsel was ineffective for failing to appeal the trial court’s

   ruling that prior bad acts committed by the victim were inadmissible. The petitioner also

   maintains that trial counsel was ineffective for failing to object to “expert” testimony

   presented by the state. He further insists that trial counsel ineffectively questioned him

   on direct examination regarding his prior convictions. Finally, the petitioner contends

   that trial counsel was ineffective for failing to conduct an adequate investigation of the

   case and for failing to procure favorable witnesses for the defense.

                                   A. Standard of Review

          In post-conviction proceedings, the petitioner bears the burden of proving the

   allegations raised in the petition by clear and convincing evidence. Tenn. Code Ann.

   § 40-30-210(f). Moreover, the trial court’s findings of fact are conclusive on appeal

   unless the evidence preponderates against the judgment. Tidwell v. State, 922 S.W.2d

   497, 500 (Tenn. 1996); Campbell v. State, 904 S.W.2d 594, 595-96 (Tenn. 1995);

   Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).

                           B. Ineffective Assistance of Counsel

          The Sixth Amendment to the United States Constitution provides, in part, “[i]n

   all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance

   of counsel for his defense.” Similarly, Article I, § 9 of the Tennessee Constitution

   guarantees an accused “the right to be heard by himself and his counsel . . .”


                                               -6-
Additionally, Tenn. Code Ann. § 40-14-102 provides, “[e]very person accused of any

crime or misdemeanor whatsoever is entitled to counsel in all matters necessary for

such person's defense, as well to facts as to law.”

       The United States Supreme Court articulated a two-prong test for courts to

employ in evaluating claims of ineffective assistance of counsel in Strickland v.

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

its analysis by noting that “[t]he benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.”

Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. W hen challenging the effective

assistance of counsel in a post-conviction proceeding, the petitioner bears the burden

of establishing (1) the attorney’s representation was deficient; and (2) the deficient

performance resulted in prejudice so as to deprive the defendant of a fair trial.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Powers v. State, 942 S.W.2d 551, 558

(Tenn. Crim. App. 1996). This Court is not required to consider the two prongs of

Strickland in any particular order. Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim.

App. 1996). “Moreover, if the Appellant fails to establish one prong, a reviewing court

need not consider the other.” Id.

       The test in Tennessee in determining whether counsel provided effective

assistance at trial is whether counsel’s performance was “within the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975); see also Harris v. State, 947 S.W.2d at 163. In order to

demonstrate that counsel was deficient, the petitioner must show that counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Harris v. State, 947

S.W.2d at 163.




                                           -7-
       Under the prejudice prong of Strickland, the petitioner must establish that “there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104

S.Ct. at 2068.

       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, 466 U.S. at 689, 104 S.Ct. at 2065. The

mere failure of a particular tactic or strategy does not per se establish unreasonable

representation. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). However, this

Court will defer to counsel’s tactical and strategic choices only where those choices are

informed ones predicated upon adequate preparation. Id.; Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982).

                              C. Victim’s Prior Bad Acts

       The petitioner claims that trial counsel was ineffective in failing to properly

question the petitioner at trial with regard to the victim’s prior acts of violence. He

argues that counsel questioned the petitioner generally about the victim’s violent

tendencies, but did not follow up with questioning regarding the petitioner’s knowledge

of specific violent acts committed by the victim. Furthermore, he claims that trial

counsel was ineffective in failing to appeal the trial court’s ruling that other defense

witnesses could not testify regarding specific violent acts by the victim.

       Tenn. R. Evid. 404(a)(2) provides:

              Evidence of a person’s character or a trait of character is not
       admissible for the purpose of proving action in conformity with the
       character or trait on a particular occasion, except . . . [e]vidence of a
       pertinent character trait of the victim of crime offered by an accused or by
       the prosecution to rebut the same, or evidence of a character trait of
       peacefulness of the victim offered by the prosecution in a homicide case
       to rebut evidence that the victim was the first aggressor.


                                            -8-
    A defendant may testify as to his or her knowledge of recent acts of violence committed

    by the victim against others to establish the defendant’s fear or apprehension of the

    victim prior to or during an assault. State v. Furlough, 797 S.W.2d 631, 648 (Tenn.

    Crim. App. 1990); see also State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994).

    Further, specific acts of violence by the victim are admissible to corroborate a

    defendant’s assertion that the victim was the first aggressor.1 State v. Furlough, 797

    S.W.2d at 649.

              The petitioner should have been allowed to testify as to specific acts of violent

    conduct committed by the victim. However, even if this Court were to find that trial

    counsel’s performance was somehow deficient in not eliciting testimony regarding

    specific acts of violence committed by the victim,2 the petitioner has not demonstrated

    how he was prejudiced by this deficiency. Indeed, the state introduced the petitioner’s

    videotaped statement to law enforcement authorities wherein the petitioner told the

    investigating officer of his knowledge of two instances where the victim assaulted third

    persons. These are the instances of which the petitioner now complains he was not

    allowed to testify. The jury, thus, was able to hear that the petitioner feared the victim

    as a result of these prior violent acts. Thus, there does not appear to be any reason

    to believe the jury’s verdict might have been different had the petitioner been allowed

    to testify at trial regarding these incidents.

              The petitioner also complains that counsel was ineffective on appeal for failing

    to appeal the trial court’s ruling that other defense witnesses could not testify as to prior

    violent acts committed by the victim. Once again, the petitioner has not established


         1
           In State v. Hill, this Cour t held that wh en spe cific instanc es of co nduct a re adm issible to co rrobora te
the defendant’s assertion that the victim was the fir st ag gres sor, th e evid enc e is on ly admissible as part of the
defe nda nt’s cross-examination of the victim . 885 S.W .2d at 363 ; but see State v. Ruane, 912 S.W.2d 766,
780-781 (Tenn. Crim. App. 1995) (holding that corroborative proof that the vic tim was the init ial agg ress or is
outside the scope of Tenn. R. Evid. 40 4(a)(2) a nd 405 ; thus, third pe rsons m ay testify as to specific instances
of violent conduct comm itted by the victim on direct exam ination).

         2
          Trial counsel attempted on numerous occasions to elicit testimony from various witnesses regarding
the victim’s propensity for violence and specific acts of violence committed by the victim. On most occasions,
how ever , the tr ial cou rt sus taine d the state ’s obj ectio n to th is tes timo ny.

                                                              -9-
    prejudice. Numerous times during the trial, witnesses testified as to the victim’s prior

    convictions, prior violent acts and general reputation for violence in the community.3

    Therefore, even had counsel appealed this issue, it is clear that any error would have

    been deemed harmless. 4 Because the petitioner has not demonstrated a reasonable

    probability that the result of the proceeding would have been different, the petitioner

    has not established how he was prejudiced. See Strickland, 466 U.S. at 694, 104 S.Ct.

    at 2068.

            The petitioner has failed to carry his burden of showing that more extensive

    questioning regarding the victim’s prior acts of violence would probably have changed

    the result of the trial.     Therefore, this issue is without merit.

                                          D. “Expert” Testimony

            In his next allegation of ineffective assistance of counsel, the petitioner contends

    that his attorney failed to object to Officer Read Majors’ testimony. He argues that

    Officer Majors testified as an expert, but the state never qualified him as an expert. As

    a result, he alleges that trial counsel should have objected to Officer Majors’ testimony

    and/or taken appropriate measures to correct the detrimental effects of such testimony.

            Officer Majors of the Metropolitan Police Department was called to testify as a

    witness for the state.          Majors was the firearms instructor for the Metro Police

    Department and was asked to perform tests on the shotgun which the petitioner used

    to shoot Dewey Slanton. Majors shot the weapon at a paper silhouette with both an

    open and a closed choke at various distances to demonstrate the shot spread patterns

    from different distances. The state was allowed to introduce the silhouettes as exhibits,


        3
         Although the state objected to such testimony on several occasions, the trial court instructed the jury
to disregard the testimony only once.

        4
           Moreover, Duzane was not questioned at the post-conviction hearing as to his reasoning for failing
to pre sen t this issue on appeal. The petitioner bears the burden of establishing that counsel’s decision not
to appeal this issue was deficient performance. “Generally, the determination of which issues to present on
appeal is a matter which addresses itse lf to the profe ssional ju dgm ent and s ound d iscretion o f appellate
couns el.” Cam pbe ll v. State , 904 S.W.2d 594, 597 (Tenn. 1995). Since it is possible that counsel believed
such an issue would not have been fruitful on appeal, the petitioner has not established th at co uns el’s
performance was deficient in this regard.

                                                       -10-
while Majors testified as to whether the choke was open or closed and the approximate

distance from which the shot was fired.

       If a witness possesses scientific, technical, or specialized knowledge, he or she

may qualify as an expert and opinion testimony may be proper. Tenn. R. Evid. 702.

A necessary prerequisite to such testimony is the qualification of the witness as an

expert. Bryant v. State, 539 S.W.2d 816, 819 (Tenn. Crim. App. 1976). In this case,

however, Officer Majors did not give expert testimony. He merely explained the tests

he conducted to the jury, and when the exhibits were passed to the jury, he informed

them regarding the approximate distance from which the shot was fired. The trial court

did not allow Officer Majors to state any opinion or draw any conclusions with regard

to such testing. Thus, trial counsel was not ineffective for failing to object to Officer

Majors’ lack of qualifications. Furthermore, contrary to the petitioner’s assertion,

Duzane objected to Officer Majors’ testimony on numerous occasions on several

different grounds. The petitioner has not demonstrated that trial counsel was deficient

in this respect, nor that he suffered prejudice as a result.

       This issue has no merit.

                           E. Petitioner’s Prior Convictions

       The petitioner next argues that trial counsel was ineffective when he questioned

the petitioner regarding his prior convictions. Prior to the petitioner testifying, the trial

court held a jury out hearing to determine whether the state could impeach the

petitioner with a prior conviction for aggravated assault with the intent to commit a

robbery. The trial court ruled that the state could question the petitioner with regard to

such conviction. On direct examination, the following exchange occurred:

       Q.           Were you convicted of a felony of aggravated
              assault with intent to commit robbery, back in 1980?

       A.             Yes, sir. I was.

       Q.             And is this the second time you’ve been in trouble?



                                            -11-
              A.              Yes, sir. I have. This is the only time, other than
                       that one time.

              On cross-examination, the prosecutor then questioned the petitioner regarding

    his prior arrests for assault, malicious destruction of property, assault and battery, and

    assault with an automobile. The trial court found that the petitioner had “opened the

    door” to such questioning.

              The petitioner complains that trial counsel’s questioning opened the door to the

    prosecutor’s questioning regarding the petitioner’s prior arrests. He claims that the

    “intense questioning obviously flustered [him] and destroyed his credibility in the eyes

    of the jury.” However, it was the petitioner’s false answer to the question which

    “opened the door” to his prior arrests. In taking the stand in his own defense, the

    petitioner was sworn to tell the truth, regardless of the questions posed to him. We

    refuse to find trial counsel deficient as a result of his client’s decision to testify

    untruthfully. The petitioner has not established that trial counsel’s performance was

    deficient in this regard, nor has he established that he suffered prejudice as a result.5

              This issue is without merit.

                                             F. Failure to Investigate

              In his final claim of ineffective assistance of counsel, the petitioner alleges that

    trial counsel did not conduct an adequate investigation of his case. He argues that trial

    counsel did not adequately investigate the crime scene and counsel should have hired

    a private investigator. He further claims that trial counsel failed to secure favorable

    witnesses for the defense.

              With regard to the claim that trial counsel did not properly investigate the

    petitioner’s case, the petitioner has failed to demonstrate what evidence further




         5
           The petitioner cla ims tha t the prose cutor’s cr oss-ex amin ation rega rding his p rior arrests destroyed
the petitio ner’s cred ibility in the eyes o f the ju ry. Du ring cross-exam inatio n, the petitio ner c ould n ot rec all
whether he had b een pre viously arres ted. Any los s of c redib ility wou ld clear ly be the resu lt of the petitio ner’s
lack of recollection in this regard.

                                                            -12-
investigation would have produced. As a result, the petitioner has not shown how he

was prejudiced by his attorney’s alleged deficiency.

           The petitioner further complains that trial counsel did not contact witnesses who

would have testified as to the victim’s drunken state on the afternoon of the shooting.

However, these witnesses were not called to testify at the post-conviction hearing.

“When a petitioner contends that trial counsel failed to discover, interview, or present

witnesses in support of his defense, these witnesses should be presented by the

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

App. 1990). Without the testimony of these proposed witnesses, this Court is left to

speculate as to what their testimony would have been. Because the petitioner did not

present these witnesses at the post-conviction hearing, he cannot demonstrate how he

was prejudiced by his attorney’s failure to discover these witnesses and/or call them to

testify.

           This issue has no merit.



                                              III.



           The petitioner has not established that his attorney provided deficient

performance at trial or on appeal. Moreover, he has not demonstrated a reasonable

probability that, due to his attorney’s alleged deficiencies, the result of the proceeding

would have been different. Accordingly, the trial court properly denied the petition for

post-conviction relief. The trial court’s judgment is affirmed.



                                       ____________________________________
                                       JERRY L. SMITH, JUDGE



CONCUR:



                                             -13-
___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                               -14-
