             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                          MARCH 1999 SESSION
                                                      FILED
                                                       May 25, 1999

                                                    Cecil Crowson, Jr.
FREDDIE L. POLLARD,          )
                                                   Appellate Court Clerk
                             )
             Appellant,      )    No. 02C01-9802-CR-00042
                             )
                             )    Shelby County
v.                           )
                             )    Honorable John P. Colton, Judge
                             )
STATE OF TENNESSEE,          )    (Post-Conviction)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Robert B. Gaia                    John Knox Walkup
100 N. Main Building              Attorney General of Tennessee
Suite 3201                               and
Memphis, TN 38103                 Douglas D. Himes
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  William L. Gibbons
                                  District Attorney General
                                          and
                                  James Challen
                                  Assistant District Attorney General
                                  201 Poplar Avenue - 3rd Floor
                                  Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



                      The petitioner, Freddie L. Pollard, appeals as of right from the

Shelby County Criminal Court’s denial of his petition for post-conviction relief. The

petitioner seeks relief from his 1993 conviction for first degree murder, for which he

received a life sentence. This court affirmed the conviction in State v. Freddie L.

Pollard, No. 02C01-9306-CR-00129, Shelby County (Tenn. Crim. App. July 6, 1994).

The petitioner now contends that he received the ineffective assistance of counsel

because his trial attorney (1) failed to put on a defense, (2) failed to call the petitioner

as a witness at trial, and (3) failed to present witnesses at trial who were at the scene of

the incident. We affirm the trial court’s denial of relief.



              At the evidentiary hearing, the petitioner testified that his attorney did not

advise him of anything during the trial and that his attorney did not investigate his case.

He said his attorney visited him once or twice for fifteen minutes before the trial. He

said he was unaware of any motions filed by his attorney on his behalf. He said the

state never offered a plea bargain. He admitted that he shot the victim, but he said he

believed the defense of provocation was available because the victim threatened to kill

him. He testified that before this offense, he had no criminal record. He stated that he

thought his attorney should have investigated or interviewed ten to twenty witnesses

who were present at the shooting.



              On cross-examination, the petitioner stated that he did not expect to be

acquitted, but he thought he would receive a lesser sentence. He said he wanted his

attorney to cross-examine the state’s witnesses regarding their backgrounds, but he

admitted that he did not know how this could have helped his case. He said his

attorney should have investigated the victim’s criminal history, but he did not know if it




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would have affected the outcome of the case. He said he thought his attorney should

have offered a plea bargain, but he admitted that the state did not offer one.



              The petitioner’s attorney testified that he received open-file discovery from

the district attorney’s office. He said he copied and reviewed all of the witness

statements. He said the petitioner never denied shooting the victim. He stated that the

state’s only offer was life in prison, which was the maximum punishment for which the

petitioner was eligible. He said the petitioner never provided the names of any

witnesses that could have exonerated him, nor did the petitioner indicate that he

wanted him to investigate any specific areas of the case. He stated that his theory of

defense was that it was a case of second degree murder.



              The trial court found that the petitioner received the effective assistance of

counsel and denied the post-conviction petition. The trial court stated as follows:

              There is no proof that counsel did not investigate the case
              and pursue all leads given to him by the petitioner. . . .
              Counsel pursued all reasonable defenses that the facts
              justified. . . .



              The petitioner contends that he received the ineffective assistance of

counsel because his trial attorney did not put on a defense, call the petitioner as a

witness, or call witnesses who were at the scene of the offense. The state contends

that the trial court correctly determined that the petitioner received the effective

assistance of counsel. We agree.



               Under the Sixth Amendment, when a claim of ineffective assistance of

counsel is made, the burden is upon the petitioner to show (1) that counsel's

performance was deficient and (2) that the deficiency was prejudicial in terms of

rendering a reasonable probability that the result of the trial was unreliable or the

proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.


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Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied, as well, to the right to

counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772

S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874 (1989).



              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert.

denied, 444 U.S. 944 (1979). Also, in reviewing counsel's conduct, a "fair assessment

of attorney performance 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; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)

(counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a

particular strategy or tactic failed or even hurt the defense does not, alone, support a

claim of ineffective assistance. Deference is made to trial strategy or tactical choices if

they are informed ones based upon adequate preparation. See Hellard, 629 S.W.2d at

9; DeCoster, 487 F.2d at 1201.



              Also, we note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney's conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.




                                             4
                 The burden is on the petitioner in the trial court to prove the factual

allegations that would entitle him to relief by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f) (1995). On appeal, we are bound by the trial court’s findings

of fact unless we conclude that the evidence in the record preponderates against those

findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,

the petitioner, as the appellant, has the burden of illustrating how the evidence

preponderates against the judgment entered. Id.



              First, the petitioner claims that his attorney was ineffective for failing to put

on a defense. The petitioner’s attorney testified that in light of the petitioner’s

admission to the shooting, he believed the best strategy was to present a theory of

second degree murder. This represents a tactical decision by the petitioner’s attorney

that will not be second-guessed by this court. Hellard, 629 S.W.2d at 9. Furthermore,

“when a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless . . ., counsel’s failure to pursue those investigations

may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691, 104 S. Ct.

at 2066.   The petitioner has presented no evidence to show that his attorney was

deficient or that he was prejudiced.



              Next, the petitioner claims that his attorney was ineffective for failing to

call him as a witness. The petitioner has offered no evidence to show that he

requested to testify at trial or that his attorney interfered with that right. This issue is

without merit.



              Finally, the petitioner claims that his attorney was ineffective for failing to

call witnesses who were at the scene of the shooting. Although the petitioner testified

that there were ten to twenty people who witnessed the shooting, he has not presented

any testimony by any witness to the shooting. See Black v. State, 794 S.W.2d 752, 757



                                               5
(Tenn. Crim. App. 1990) (holding that petitioner should have the previously uncalled

witness testify at the evidentiary hearing). In fact, the petitioner agreed that this court’s

recitation of the facts on direct appeal was basically correct. Furthermore, his attorney

testified that the petitioner never provided him with a list of witnesses that could have

exonerated the petitioner. We conclude that the petitioner has failed to show that the

record preponderates against the trial court’s judgment that he received the effective

assistance of counsel.



               In consideration of the foregoing and the record as a whole, we affirm the

trial court’s denial of the petition for post-conviction relief.



                                                            __________________________
                                                            Joseph M. Tipton, Judge



CONCUR:



__________________________
Gary R. Wade, Presiding Judge



__________________________
Thomas T. Woodall, Judge




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