        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                     DECEMB ER SESSION, 1998         May 11, 1999

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
GREG L. BAINE,            )    C.C.A. NO. 03C01-9806-CR-00201
                          )
      Appe llant,         )
                          )
                          )    POLK COUNTY
VS.                       )
                          )    HON. CARROLL L. ROSS
STATE OF TENNESSEE,       )    JUDGE
                          )
      Appellee.           )    (Post-Conviction)




FOR THE APPELLANT:             FOR THE APPELLEE:

LEONARD M. CAPUTO              JOHN KNOX WALKUP
Phillips & C aputo             Attorney General and Reporter
312 Vine Street
Chattanooga, TN 37403          R. STEPHEN JOBE
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               JERRY N. ESTES
                               District Attorney General

                               SHARI TAYLOE
                               10th Judicial District
                               P. O. Box 1351
                               Cleveland, TN 37364-1351



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                  OPINION

       The petitioner, Greg L. Baine, appeals the Polk Cou nty Crim inal Co urt’s

order denying his petition for post-conviction relief after an evidentiary hearing.

Petitioner was convicted in 1991 o f one (1) count of premeditated first degree

murder and sentenced to life imprisonment. He filed a post-conviction petition,

alleging, inter alia , ineffective assistance of coun sel. On appe al, petitioner claims

that trial cou nsel was ine ffective for failing to “properly utilize exculpa tory

discovery material” and for failing to speak with state officials before they

conducted an uncounseled interview with the petitioner. After a thorough review

of the reco rd before this Cou rt, we affirm th e judgm ent of the tria l court.



                                           I.

                                       A. Trial

       Petitioner was co nvicted afte r a jury trial of premeditated first degree

murder and w as se ntenc ed to life impris onm ent. H is conviction was affirmed by

this Court. State v. Greg Baine, C.C.A. No. 03C01-9202-CR-43, 1992 WL

151403, Polk County (Tenn. Crim. App. filed July 2, 19 92, at Kn oxville), perm. to

app. denied (Tenn. November 30, 1992). We will recite the facts as set out by

this Co urt on d irect ap peal:

               On December 24, 1990, at 8:45 p.m., the body of Ronnie
       Laud ermilk was fou nd at the Crestview C emetery in P olk County.
       It is undisputed that the appellant killed Mr. Laudermilk. His defense
       at trial was that of self-defense.

               Although the appellant referred to the decedent as a longtime
       friend, the appellant was having an affair with the decedent’s wife.
       The decedent had apparently learned about the affair and had
       confronted the appellant during the day he was killed. The appellant
       testified at trial that during this initial confrontation, the decedent put

                                           -2-
         a gun to the appellant’s chest and threatened his life. No physical
         violence resulted from this meeting. Later that day the decedent
         and appellant met each other in town. The d eced ent alle gedly told
         the appellan t that he wis hed to speak with him, but he desired to do
         so out of town. They began driving, the appellant leading the
         deced ent, with no app arent de stination. After d riving ap proxim ately
         fifteen miles, they approached Crestview Ceme tery. The decedent
         blew his horn and pointed to the cem etery, indica ting his de sire to
         stop at the cemetery. The appellant testified that after he stopped,
         the decedent pulled in behind him a ttemp ting to b lock his car from
         exiting. The decedent exited the car and threw a beer at the
         appe llant’s windshield. After leaving his truck, the decedent
         allege dly kicked the appellant’s car door shut and would not let him
         out of the car. According to the appellant’s testimony the decedent
         then stated, “I’m gonna ge t my shotgun out of the truck,” and “I’ve
         got you right where I want you now.” The appellant had a shotgun
         in his car and m ade c ertain that the de ceden t saw it. Acc ording to
         the appellant, the decedent then turned and walked to his truck to
         get his shotgun. The appellant testified that he shot the decedent
         when th e dece dent turn ed awa y and sta rted towa rd the truck .
                The appellant stated that he could not see the decedent after
         the shot was fired because it was dark. He exited his car on the
         pass enge r’s side, walked around to the front of the car, and saw M r.
         Laud ermilk on his hands and knees. The appellant stated at trial
         that he saw Laudermilk reaching into his pocket with his right hand.
         The appellant supposedly was aware that the decedent habitually
         carried a pistol. He twice ordered Laude rmilk to sto p reach ing into
         his pocket, but he paid no attention. Therefore, appellant shot the
         decedent a second time with his 12-gauge shotgun. Laudermilk
         died in the cem etery before be ing found by a p asserby.

State v. Greg Baine, 1992 WL 151403 at *1.

                                     B. Post-Conviction Hearing

         The petitioner was twenty-nine (29) years old at the tim e of the po st-

conviction hearing . He stated that he was twenty-one (21) years old when the

shooting occurred and had an eleventh grade education.1 Althoug h both were

marr ied to o ther pe ople, h e and Miche lle Lou derm ilk 2 becam e roman tically




         1
             Howe ver, the pe titioner testified a t trial that he we nt “[t]hrough the 12th g rade.”

         2
          Mich elle Lo ude rm ilk is th e dec ede nt’s wife. Although the decedent’s name was spelled “Laudermilk”
in this Court’s o pinion on d irect appe al, the dec edent’s w ife signed her statem ent as “L ouderm ilk.” Therefore,
we will use the “Loudermilk” spelling in this opinion.

                                                          -3-
involved in Octo ber of 1 990.       T hey co ntinued to see each other after Mr.

Loude rmilk wa s killed.

       The petitioner testified that, on the day of the shooting, Mr. Loudermilk

confronted him about his affair with Mrs. Loude rmilk. Afterwards, the petitioner

went to a friend’s home, a nd the y phon ed Mr s. Lou derm ilk. Mrs. L oude rmilk

asked the petition er to meet her at the cemetery at 6:00 p.m. that evening. Mrs.

Loud ermilk arrived at the cemetery shortly after the petitioner arrived. They

spoke in his car for approximately five (5) minutes until they observed the victim

driving into the cem etery. T he de cede nt exited his vehicle and threw a can of

beer at the petitioner’s windshield.             Mrs. Loudermilk jumped out of the

petition er’s vehicle and began running towards her car. The petitioner attempted

to get out of h is car, but M r. Loudermilk k icked the do or shu t. Mr. Lo uderm ilk

threatened the petitioner, and as he turned to walk to his vehicle, the petitioner

shot him. Because the petitioner could not see the v ictim, he w alked aro und to

the front of his vehicle and found Mr. Loudermilk on his hands and knees.

Sudden ly, Mrs. Loudermilk grabbed the shotgun from the petitioner’s hands and

shot the v ictim the s econd time.

       The petitioner te stified that his attorney never asked him whether Mrs.

Loud ermilk or any other witnesses were present at the scene of the shooting.

Howeve r, he ackn owledg ed that h e lied to his atto rney a nd als o lied in his

testimony at trial regarding Mrs. Lo udermilk’s invo lvement in the shooting. He

stated that lied to protect Mrs. Loudermilk because she had informed him that

she was pregnant with his child. Mrs. Loudermilk threatened to abort the child

if the petitione r implicate d her in he r husba nd’s dea th.

       The petitioner also presented the signed statement of Michelle Loudermilk.

This statement was the second statement given by Mrs. Loudermilk to TBI

                                           -4-
officers on De cem ber 25 , the da y followin g her husband’s death.           In Mrs.

Loud ermilk ’s first statement to the law enforcement authorities, she claimed that

she knew nothing about her husband’s shooting. In her second statement, Mrs.

Loud ermilk admitted that sh e was pres ent in the cem etery during Pe titioner’s

confrontation with the dece dent. Sh e stated th at she w ent to the cemetery to “put

a tree” on h er relatives’ g raves. When she arrived, the petitioner was there. She

and the petitioner spok e for a while until they saw M r. Loudermilk’s vehicle driving

into the cemetery. The victim exited his vehicle while holding a shotgu n. She

stated that she then returned to her car and left the cemetery. As she was driving

away, sh e heard a guns hot.

      With the exception of Mrs. Loudermilk’s presence at the scene, the

petitioner d isputed th e veracity o f Mrs. Lou dermilk’s statem ent.

      The petitioner testified that after he was c onvicte d of m urder and w hile his

case was pending on appe al, Ass istant D istrict Atto rney Jo e Reh yansk y, the P olk

Coun ty Sheriff and a deputy sheriff met with him in prison. He stated that the

state representatives explained to him that they believe d he wa s lying to protect

Mrs. Louderm ilk.     He testified tha t they advise d him tha t if he would testify

against Mrs. Loudermilk regarding her involvement in the shooting, he would be

a free man. The petitioner testified that he refused to talk to the authorities

becau se his atto rney adv ised him not to spe ak to any one.

      Petitioner was rep resente d by Co nrad Fin nell at trial. At the time of the

hearing, Finnell had practiced law for 36 years, and a sub stantia l portion of his

practice was c rimina l. Finnell testified that, after hearing the petitioner’s version

of the facts of the case, he believed that the shooting was in self-defense.

Petitioner never mentioned to Finnell that Mrs. Loudermilk was present at the

cemetery at the time of the shooting. However, Finnell acknowledged that he

                                          -5-
was unaware of Mrs . Loud ermilk ’s second statement to TBI officers wherein she

admitte d being prese nt durin g the in ciden t. Finne ll explain ed tha t, due to his

heavy case load at the time, he w as una ble to perso nally rev iew the discov ery in

this case. Instead, he relied upon mem bers o f his staff to review the materials.

A member of his staff erroneously informed him that Mrs. Loudermilk was not

present during the inc ident, a nd as a resu lt, Finne ll did not pursue the matter

further. Apparently, the statement had been received from the state in disc overy

and m isplaced in a “misc ellaneou s” sub-file.

        Finne ll testified that, wh ile the p etitione r’s case was pending on appeal, an

assistant district attorne y and th e Polk County Sheriff at the time conducted an

uncounseled interview with the petition er in pris on. He did no t recall giving the

state authorities permission to speak with his client alone and learned about the

interview after it occurred. Moreover, he could not recall whether anyone from

the District Attorney’s office attempted to contact him prior to the interview.

However, because the pe titioner’s statem ent to th e state agen ts was in

conform ity with his testim ony at tr ial, Finn ell did not believe that the petitioner was

harme d by the m eeting.

        Assistant District Attorney Joe Rehyansky testified at the post-conviction

hearing. He stated that he was assigned to work on the state’s case against

Miche lle Loudermilk.            In the course of his inve stigations, Rehya nsky,

accompanied by the sheriff of Polk County and his chief deputy, visited the

petitioner while he was incarcerated in the penitentiary in November 1991.3

Rehyansky wished to speak with the petitioner because he believed that the

petitioner had not been forthright with regard to Mrs. Loudermilk’s involvement



        3
        The me eting took place appr oxim ately four (4) months after the petitioner was convicted of first
degree mu rder.

                                                 -6-
in the shooting and wanted the petitioner to testify against Mrs. Loudermilk at her

trial.   He tes tified tha t althou gh he attem pted to conta ct Finn ell prior to his

meeting with the petition er, he w as un able to reach him. Rehyansky stated that

the petitioner agreed to speak with them, but the petitioner gave the same

version of the story as he testified to at trial. Rehyansky went on to state:

                 But what I think I presented to him was this - and I made no
         promises. I said, “Maybe we can do this, Gre g, if, if you’re willing to
         tell the truth at Michelle’s trial. Maybe we can get the judge to let the
         parties set aside your premeditated murder conviction and have you
         re-enter a plea to second degree.” . . . A nd I thin k I ma y have told
         him to discuss that with Conrad. But he didn’t have anything helpful
         to say at the time, and I never heard back from him or Conrad.

Howeve r, although he believed that Mrs. Loudermilk was equally culpable for her

husband’s murder, Rehyansky testified that, in his opinion, the petitioner was

guilty of prem editated m urder.          M rs. Loud ermilk su bsequ ently pled g uilty to

accessory a fter the fact to first degree m urder. 4

         At the conclusion of the proof, the trial court denied post-con viction relief.

In its written order denying post-conviction relief, the trial court noted that the

petitioner deliberately and repeatedly misled his attorney into believing that he

was the only person present during the shooting. The trial court further found

that the petitioner “not only gave false statements to the investig ating o fficers in

this caus e but . . . a lso kno wing[ly ] and w illfully testifie d false ly during his

testimony at trial.” Additionally, the trial court observed that while the petitioner

claimed that his a ttorney was d eficien t for failing to read Mrs. L oude rmilk’s

second statement, the petitioner’s testimony at the post-conviction hearing

indicated “that every m aterial is sue in Miche lle Lou derm ilk’s statement was not

true.” The trial co urt conclu ded tha t trial counse l was not d eficient for failing to


         4
          Mrs. Loudermilk was charged with conspiracy to commit first degree murder, premeditated first
degree murder and accessory after the fact. However, due to the state’s lack of evidence, she was allowed
to plead g uilty to acces sory after th e fact.

                                                -7-
read the “second false statement,” and the petitioner was not prejudiced as a

result of an y alleged d eficiency.

        From the trial c ourt’s ru ling, the petition er bring s this ap peal.



                                                     II.

                                     A. Standard of Review

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

the allegations raised in the petition by a preponderance of the evidence.5

Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d

97, 101 (Tenn. Crim. App. 1995). Moreover, the trial court’s findings of fact are

conclusive on appeal unless the evidence preponderates against the judgm ent.

Tidw ell v. State, 922 S.W.2d at 500; Cam pbell v. State , 904 S.W.2d 594, 595-96

(Tenn . 1995); Coop er v. State, 849 S.W .2d 744, 746 (Tenn. 199 3).

                           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 couns el for his de fense.” Similarly, Article I, § 9 of the Tennessee

Constitution guarantee s an accus ed “the right to be he ard by him self an d his

counsel . . .” Additionally, Tenn. Co de Ann. § 4 0-14-102 p rovides, “[e]very

person accused of any crime or misdemeanor whatsoever is entitled to counsel

in all matte rs nece ssary for su ch pers on's defe nse, as w ell to facts as to law.”

        The United States Supreme Court articulated a two-prong tes t 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 67 4 (1984). Th e Court


        5
           Under the 1995 Post-Conviction Procedure Act, the petitioner has the b urde n of p rovin g his claim s
by clear and convinc ing eviden ce. Tenn. Code Ann. § 40-30-210(f). However, since the present petition was
filed in 1994, the petitioner’s claims must be proven by a preponderance of the evidence.

                                                    -8-
began its analysis b y 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 re sult.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. When

challenging the effective assistance of counsel in a post-conviction proceeding,

the petitioner bears the burden of establishing (1) the attorney’s representation

was deficie nt; and (2) the d eficien t perfor man ce res ulted in prejud ice so as to

deprive the defen dant of a fa ir trial. Strickland, 466 U.S. at 687, 104 S.Ct. at

2064; Powe rs v. State, 942 S.W .2d 55 1, 558 (Ten n. Crim . App. 1 996). T his

Court is not required to consider the two prongs of Strickland in any particular

order.     Harris v. S tate, 947 S.W .2d 156 , 163 (T enn. C rim. 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 (T enn. 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

coun sel’s representation fell below an objective standard of reasonab leness

under prevailing p rofession al norm s. Strickland, 466 U.S. at 688, 104 S.Ct. at

2064; Harris v. S tate, 947 S.W.2d at 163.

         Under the prejud ice 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 differen t. A rea sona ble probability is a

probab ility sufficient to underm ine confidence in the outcom e.” Strickla nd, 466

U.S. at 694, 104 S.Ct. at 2068.

                                          -9-
       In reviewing coun sel’s co nduc t, a “fair assessm ent . . . 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

coun sel’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 n ot per se establish

unrea sona ble represe ntation. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 199 6).

Howeve r, this Court will defer to counsel’s tactical and strateg ic choic es on ly

where those choices are informed ones predicated upon adequate preparation.

Id.; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

                      C. State men t of Mic helle Lo uderm ilk

       In his first allega tion of ineffec tive assista nce of counsel, the petitioner

claims that trial counsel was ineffective for failing to read and “properly utilize” the

second statem ent of Michelle Loudermilk. The petitioner contends that trial

coun sel, by failing to rea d the state ment, was unable to prep are an effective

defense as he did not have the ben efit of the state ment w hile questioning or

advising his client. He asserts that Mrs. Loudermilk was a devious woman who

manipulated the petitioner, and had trial counsel utilized this statemen t properly,

he could have argued to the jury that Mrs. Loudermilk lured both the petitioner

and Mr. Louderm ilk to the cemete ry in hopes of a fatal confrontation. He further

argues that trial counsel could h ave called Mrs. L oude rmilk to testify at trial as a

corroborating witness that the victim was the first aggressor in the shooting.

       W e agree that it is certainly the better practice for trial counsel to

perso nally review all ma terials received in discove ry. However, in light of the fact

that the petitioner deliberately deceived his attorney in this regard, w e hesitate

to find trial c ouns el’s performan ce defective. W e do not believe that trial counsel

shou ld be saddled with the burden of forcing his client to be truthful when that

                                          -10-
client has willfully and repetitively lied to the attorney at every stage of the

proceedings. Clearly, the petition er held his fate in his ow n han ds an d sho uld not

be rewa rded for c hoosin g the pa th of dece it.

        Regardless of whether trial counsel was deficient in failing to read Mrs.

Loud ermilk ’s second statement to the TBI officers, the petitioner has not

demonstrated how he was prejudiced by this alleged deficienc y. First, th ere is

no evidence in the record to suggest that the petitioner would have implicated

Mrs. Loudermilk in the shooting had he been confronted with the statement by his

attorney. The p etitione r testified that, as a resu lt of her th reat to a bort the ir child

if implicated in her husband’s shooting he lied to his attorney and in his trial

testimony regarding Mrs. Loude rmilk’s involveme nt. However, the child was born

on February 1, 1992, approximately seven (7) months after the pe titioner’s trial. 6

The petitioner gives no indication as to how Mrs. L oude rmilk’s threat of abortion

would have been lifted had trial counsel read and confronted the petitioner w ith

the statemen t. Finnell testified that had he c onfronted the p etitioner with the

statement and the petitioner denied Loudermilk’s presence at the scene, he

“would have gone ahead and procee ded with this case just like [he] did .” In

addition, there is no eviden ce in the record to sugg est tha t Mrs. L oude rmilk w ould

have testified favorably for the petitioner had trial counsel attempted to call her

as a witness.

        Furthermore, as noted by the trial co urt, even thoug h the petitioner refers

to Mrs. L oude rmilk’s statement as “exculpatory” in nature, he disputes almost

every material aspect of the statement. Specifically, Mrs. Loudermilk stated that

her husband exited his vehicle with a shotgun in his hands, whereas the



        6
         The petitioner testified that Mrs. Loudermilk first informed him of the pregnancy approximately two
(2) weeks prior to the shooting. However, the baby was born almost fourteen (14) m onths later.

                                                 -11-
petitioner stated that Mr. Loudermilk was not armed while exiting the vehicle.

Second ly, Mrs. Loudermilk stated that the petition er told h er that h e wou ld kill her

husband if Mr. Loud ermilk w as abu sive to her. The petitioner flatly denied ever

making such a statement.           Additionally, the petitioner testified that Mrs.

Loud ermilk was seated inside his car when the victim drove into the cemetery,

but Mrs. Loude rmilk claimed th at she was s tanding outside of the car. Finally,

and perhaps m ost importantly, Mrs. L oude rmilk stated that she heard a shot as

she was leaving the cemetery. The petitioner testified that Mrs. Loudermilk was

not only p resent d uring the shooting , but actua lly fired the sec ond sh ot.

       The petitioner g ave two s tateme nts to TBI officials on the day following the

shooting. In one statement, he denied any involvement in the shooting. In the

second, he claimed that he shot the victim twice in self-de fense . Petition er’s

testimony at the post-con viction hea ring clearly c onflicts both statements given

to the TBI agents. If the petitioner had testified at trial that Mrs. Loudermilk also

fired the shotgun, the jury would have been faced with three (3) conflicting

versions of the facts from the petitioner. There is little doubt that the petition er’s

credibility would have been seriously questioned.

       Moreover, the state presented evidence at trial that the petitioner

premeditated the shoo ting of Mr. Loudermilk. There was testimony at trial that

the victim did not have any weapons in his vehicle approximately thirty minutes

prior to the shooting. However, law enforcement authorities found a sho tgun in

the floorboard of the victim’s truck and a .22 caliber revolver in the glove

comp artmen t.    The revolve r was identified as previously belonging to the

petitioner, and a .22 automatic weapon found on the victim’s person was

identified as belonging to Mrs. Loudermilk. Although the petitioner testified that

Mr. Loud ermilk threw a beer can at his windshield, no beer can was found in the

                                          -12-
cemetery by investiga tors. Significa ntly, TBI A gent Bro oks W ilkins testified th at,

after an exam ination of tire tr acks found at the cemetery, the law enforcement

authorities conclud ed that M ichelle Lo uderm ilk’s vehicle w as pres ent at the

ceme tery on the night of D ecem ber 24.

        The state’s evidence presented at trial, coupled w ith the p etitione r’s

proposed testim ony tha t both h e and Mrs. L oude rmilk s hot the victim, c ould

suggest that the petitioner and Mrs. Loudermilk conspired to kill the victim.

Although the petitioner insists that Mrs. Loudermilk’s statement is evidence that

she is an older, 7 devious, manipulative woman who lured the petitioner and M r.

Loud ermilk to the cemetery in hopes of a fatal c onfron tation, it is equa lly plaus ible

that the jury would have believed the state’s theory that the petitioner and Mrs.

Loud ermilk lured the victim to the cemetery and laid in wait for him to arrive.

Indeed, trial counsel recognized this possibility, as he testified, “the implications

of her be ing there are obvio us und er these circums tances .”

        From a thorough review of the record, we conclude that the petitioner has

not shown a “reaso nable p robability tha t . . . the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at

2068.       Therefore, we agree with the trial court that the petitioner has not

demon strated that he wa s prejudiced b y his attorney’s alleged deficiency.

        This issu e is withou t merit.

                                  D. Uncounseled Interview

        In his second allegation of ineffective assistance of counsel, the petitioner

claims that trial counsel was deficient in allowing the state authorities to interview



        7
           Petitioner claims that Mrs. Louderm ilk informed him that she wa s in her thirties at the time of t he
incident. However, it appears from the record that Mrs. Loudermilk is merely two (2) years older than the
petitioner. The petitioner admitted that he and Mrs. Loudermilk attended the same high school for a period
of time.

                                                   -13-
his client outside of his presence. Petitioner maintains that he was deprived of

effective representation when trial counsel failed to return the assistant district

attorne y’s phone calls. He argues that had trial counsel been present at the

meeting, he could have convinced the petitioner to testify at M rs. Lou derm ilk’s

trial in exchange for a re duced plea to second d egree m urder.

       Trial counsel Conrad Finnell could not recall the details regarding the

assistant district attorney’s uncounseled visit with the petitioner while he was in

prison. However, Assistant District Attorney Joe Rehyansky testified that he left

several messages with Finnell prior to the meeting. After the meeting proved

unsuccessful, Rehyansk y spok e with F innell in an info rmal s etting, a nd Fin nell did

not appear to be troubled by the meeting with his client. Rehyansky further

recalled that Finnell was especially optimistic that the petitioner’s conviction

would b e overturn ed on a ppeal.

       We do not find that trial counsel provided deficient perfor man ce in failing

to return the assistant district attorne y’s phon e calls. T rial cou nsel w as op timistic

that his client’s conviction would be overturned on appeal. Likewise, counsel

believed that the petitioner shot the victim in self-defense and was unaw are that

Mrs. Loudermilk was present at the cemetery during the shooting. Therefore, he

had no reason to believe that an interview with the law enforcement authorities

would have b een fru itful.

       In any event, the petitioner has failed to demonstrate prejudice. First, from

his own te stimo ny it app ears th at the p etitioner was still under the influence of

Mrs. Loudermilk at the time the interview took place in November 1991. The




                                           -14-
baby she threatene d to abort was not born until Feb ruary of 1992. A dditionally,

according to the petitioner’s mother, Mrs. Loudermilk continued to visit the

petitioner in prison until she pled guilty in December 1991. As a result, th ere is

no evidenc e that trial couns el could h ave con vinced the petitioner to testify

“truthfu lly” again st Mrs. Loud ermilk at her tria l.

         Furthermore, there is no evidence that the state would ha ve agreed to set

aside the petitioner’s conviction of first degree murder and allow him to plead

guilty to second degree murder. Assistant District Attorney Rehyansky stressed

that he made no promises to the petitioner, but merely s tated, “[m]aybe we can

get the judge to let the parties set aside your premeditated murder conviction and

have you re-enter a plea to second degree.” (Emphasis added). Nor is there any

evidenc e that the tria l court wou ld have a pproved of such a n arrang emen t.

         The petitioner has not demonstrated that trial counsel’s performance was

deficient or how he wa s preju diced by this alleged deficiency. This issue has no

merit.



                                            III.




         The petitioner in this case has repeatedly and willfully lied to his trial

attorney, not to mention law enforcement authorities and in his testim ony at tr ial.

Under these circumstances, we cannot conclude that trial counsel’s performance

was deficient. Moreover, the petitioner has not demonstrated how he was




                                            -15-
prejudiced by the alleged deficient performance of trial coun sel. Accordingly, the

judgment of the trial court denying post-conviction relief is affirmed.




                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                       -16-
