        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                       OCTOBER SESSION, 1997            March 31, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
MARK L. PECK,                  )   C.C.A. NO. 03C01-9611-CR-00402
                               )
      Appe llant,              )
                               )
                               )   SULLLIVAN COUNTY
VS.                            )
                               )   HON. FRANK L. SLAUGHTER
STATE OF TENNESSEE,            )   JUDGE
                               )
      Appellee.                )   (Post-Co nviction Re lief)




FOR THE APPELLANT:                 FOR THE APPELLEE:

RAYMOND C. CONKIN , JR.            JOHN KNOX WALKUP
320 Cherokee Street, Suite B       Attorney General and Reporter
Kingsport, TN 37660
                                   PETER M. COUGHLAN
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243

                                   GREELEY W ELLS
                                   District Attorney General

                                   EDWARD E. WILSON
                                   TERESA MURRAY SMITH
                                   P. O. Box 526
                                   Blountville, TN 37617



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION

       On April 22, 1989, a S ullivan County jury found P etitioner-A ppellant, Mark

L. Peck, guilty of first-degree murde r, and sen tenced him to life im prisonm ent.

After an unsuccessful direct appeal to this Court, on January 10, 1995, Appellant

filed a pro se petition for h abeas corpus relief. This petition was construed by the

court as a petition for post-conviction relief and coun sel wa s app ointed . On Ju ly

9, 1995, after a hearing, the court dismissed Appellant’s petition. Appellant

appe als from the denial of his pe tition, cla iming that the trial cou rt erred in finding

that he receive d effec tive ass istanc e of co unse l at trial.



       Appellant bases his claim of ineffective assistance of counsel upon several

alleged om issions by trial counse l, namely:


1) trial counsel failed to interview certain potential alibi witnesses whose names
were pro vided by A ppellant;
2) trial cou nsel fa iled to in vestiga te the p hone call ma de by A ppella nt to his
mother aro und the time of the murde r;
3) trial couns el failed to inve stigate the conte nts of a letter fro m Ro y Rhe a to Jim
Cody alleging that a third party com mitted the m urder;
4) trial coun sel denie d Appe llant the right to testify on his o wn beh alf;
5) trial co unse l failed to prese rve the record at trial.


       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                               BACKGROUND FACTS:



       As stated by this Court on direct appeal, the evidence presented at trial

showe d that:




                                            -2-
      The Appellant, who dated the victim's estranged w ife, Donna S trickler,

shared a residence with Robin Johnson and Jim Clark . He had arranged for

Johnson to awak en him at abo ut 10:0 0 P.M ., Febr uary 5 , 1988 .             Shor tly

thereafter, Peck left the house, driving either his black pickup truck or a gray van.

The van conta ined C lark's tw elve ga uge s hotgu n. Pec k often drove that veh icle

and had regular access to the weapon.




      Earlier that evening, the victim had driven his siste r, Deb bie Fluharty, to an

Italian restaurant where they joined other family members for dinne r. The victim

kept a .45 c aliber p istol in his car. At about 8:00 P.M., he went into the Ramada

Inn to meet his wife, Donna, and others for drinks. Thre e hou rs later, th e victim

left the motel and went home. At about the same time, Donna Strickler departed

and went to the Tri-City Lounge.



      The state's theory , base d upo n the c ircum stanc es es tablish ed at tria l, is

that the Appellant, armed with Clark's shotgun, entered the victim's house by the

garage door at about 11:00 P.M; gained entry by the use of a duplicate key he

had acquired from Sears earlier that day; and then waited in the bedroom. The

victim apparently entered by a different door and began to walk the hallway

leading to his bedroom. He was shot twice at close range. The perpetrator took

the victim's pistol, a bullet-proof vest he found in the closet, and went out the

same door he had en tered. Thereafter, sometime between 11:30 P.M. and

midnig ht, Peck met Donna Strickler and Mary Stallard at the Tri-City Lounge. He

remained at the lounge until approxim ately 2:0 0 A.M . when he retu rned to his

residence.

                                          -3-
      The next morning, the victim's body was discovered by a relative. The

door to the garage was open. The house key that opened that door was not

among the ke ys that th e victim had w ith him , nor wa s it found in the house. The

doctor who d id the a utops y estab lished the victim 's time of death at shortly after

11:00 P.M.



      On the morning following the shooting, Peck took his pickup truc k to Lori

W ooda ll's house. He gave Woodall a pistol holster containing unspent shotgun

shells an d aske d her to h old them for him. He hid the victim 's .45 caliber pistol

in a bedro om clo set at W oodall's house. A few days later Peck asked another

friend, Victoria T oney, to g et the pisto l and clip. H e did not m ention tha t to

W ooda ll. Thereafter, he directed Robin Johnson to take the keys to his truck to

W ooda ll. Peck said h e was going away for a coup le of days. The state proved

that Woodall, Toney, and Michele Akers, a cting individu ally or in con cert,

disposed of the Appellant’s truck, the shotgun shells, and the victim's gun. They

took Peck's truck to Virginia and hid the victim's pistol in a pot-bellied stove; they

threw the shotgun shells into a field near Woodall's house. All of these items

were recovered by authorities. The victim's bullet-proof vest was found in Pec k's

shared residence.




                  INEFFECTIVE ASSISTANCE OF COUNSEL



      In review ing Ap pellan t Peck ’s Sixth A men dme nt 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

                                          -4-
of attorneys in crimina l cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn.

1975). To preva il on a cla im of ineffective counsel, the Appellant “must show that

coun sel’s representation fell below an objective standard of reasonableness” and

that this performance prejudiced the defense. There must be a reasonable

probab ility that but for counsel’s error the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104

S.Ct. 2052, 2064, 2067-6 8, 80 L.E d.2d 67 4 (1984 ); Best v. Sta te, 708 S.W.2d

421, 422 (Ten n. Crim. App . 1985). A reviewin g court need not consider the two

prongs of Strickland in any pa rticular orde r. Id. at 679, 104 S.Ct. At 2069.

Moreover, if the appellant fails to establish one prong, a reviewing court need not

conside r the othe r. Id.



       At the co nclus ion of th e hea ring in th is case , the po st-con viction court

entered the followin g findings of fact:

1)Grounds 1, 4, 7, 9, 10, 11, 13, 14 (encompassing Appellant’s claim s that:

counsel was no t prepared to arg ue the pre-trial mo tion for investigative

assistance; counsel failed to call su bpoen aed alibi w itnesses ; counse l failed to

move for a mist rial and recus al of the District A ttorney ’s Office after A ppella nt’s

notes were s eized by a sh eriff’s deputy; counsel, in closing argument, referred

to the fact Appellant was unemployed; counsel failed to protect the record for

appea l; on appeal counsel failed to adequately argue the insufficiency of the

evidence; jury instructions were insufficient; and the trial court erred in refusing

to acce pt a su bpoe na to te stify in the trial) have been p reviously litigated before

the trial court and the Court of Criminal Appeals.




                                           -5-
2) that Petitioner’s trial counsel functioned as an active a dvoca te, prote cted h is

rights, cross-examined witnesses, argued on Petition er’s behalf, and ensured that

the proper law was followed.

3) Mr. Taylo r visited and consu lted with Pe titioner 17 times prior to trial,

performed 179.6 hours of legal work out of court and 82 hours of cou rt work. Mr.

Taylor interviewed all the witnesses known to him.

4) Mr. Toohey visited and consulted with Petitioner 23 tim es prio r to trial,

performed 209.5 hours of legal work out of court and 58.5 hours of court work.

5) Pe titioner a greed not to te stify upo n the a dvice o f trial cou nsel.

6) Any witnesses not called by trial counsel were excluded from testifying by

reasonab le trial strategy.

7) Mr. Ta ylor’s re prese ntation of a m emb er of the Sullivan County She riff’s

Department was in no way related to or in conflict with this case.

8) The trial court authenticated the record, and there is no evidence to suggest

that the record is inadequate.



       In post conviction proceedings, the Appellant has the burden of proving the

allegations in the petition by a preponderance of the evidence. McBe e v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983).                 “The findings of fact and

conclusions of law made by the trial court after an evide ntiary hearing are

afforded the weigh t of a jury verd ict; this court will not set aside the judgment of

the trial court unless the evidence contained in the record preponderates against

its findings.” State v. Dick, 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993) perm.

to appeal denied (Tenn, 1993). Appellant argues that the evidence presented at

the evidentiary hearing preponderates against the findings of the post-conviction

court th at he w as ad equa tely rep resen ted by h is coun sel.

                                            -6-
       In his first allegation of error on appeal, Appellant argues that trial counsel

failed to interview potential alibi witnesses whose names were provided by

Appe llant. The finding of the trial court that witnesses excluded from testimony

were excluded for reasons o f strategy is s upporte d by the re cord of the post-

conviction hearing. Trial counsel testified that each of the witnesses Appellant

listed were interviewed, and counsel provided a reasonable strategic explanation

for not having called each of those witnesses. We do not use the benefit of

hindsight to second-guess trial strategy by counsel and criticize counsel's tactics.

Dixon v. State, 934 S.W .2d 69, 72 (T enn. Crim. A pp. 1996)(citing Hellard v.

State, 629 S.W .2d 4, 9 (T enn.19 82)). Th is issue is w ithout me rit.



       In his sec ond a llegatio n, App ellant charges that trial coun sel failed to

investigate information he gave counsel regarding a pho ne ca ll he claims to ha ve

made to his mother around the time of the m urder . Initially we note th at this

allegation is not a p art of M r. Peck ’s Amended Petition for Post-C onviction R elief,

and is therefore not a proper issue for appeal. In any e vent, the record

demonstrates that Ap pellan t was u nable to tell his a ttorney s from which public

phone the call was made.        Furth er, due to the uncertainty of exactly when the

victim was murdered, even if such evidence had been obtained, it is unlikely that

it would have provided a complete alibi for the murder. T he trial court found that

trial counsel carried out such investigation as was reasonable in this matter;

Appellant has failed to show a more extensive investigation of the alleged phone

call could have been made , or that he w as prejud iced by the failure to discover

it. This issu e is withou t merit.




                                          -7-
       Next, Appellant claims that trial counsel failed to investigate the claims

made in a letter from Roy Rhea to Jim Cody. The letter claimed that a M ark

Moody was the actual perpetrator of the crime. The testimony presented at the

post conviction hearing demonstrated that the letter did not reach trial counsel

until after the hearing on the m otion for a n ew trial. Ap pellant failed to show that

the trial cou rt’s findin g that tria l coun sel res pond ed ap propr iately to the receipt of

this letter wa s in any w ay errone ous. Th is issue is w ithout me rit.



       Appellant further argues that he was denied effective assistance of counsel

in that his trial counsel denied him the right to testify in his own behalf. The

judgment of the post-conviction court states, “Appellant has testified that he

accepted the advice of counsel but would now like to have a secon d chan ce with

the jury.” Appellant argue s that w ithout a spec ific statement from either attorney

stating that App ellant agre ed not to te stify this Cou rt is left with Appellant’s

statement that he un equivoc ally dem anded that he be allowed to testify and was

denied this right by his counsel. The record, however, does not support this

argum ent. The record demonstrates, through Appellant’s own testimony, that he

was advised by his attorneys to end the trial without presenting more proof and

that he agreed to follow their advice. It appears from the record that trial counsel

explained to Mr. Peck tha t if he were to testify then he would be cross-examined

regarding his prior convictions, a nd tha t both A ppella nt and trial cou nsel fe lt it

was advisable to rest their c ase instead of putting that testimony in front of the

jury. Appella nt has faile d to carry h is burden of proof. T his issue is without m erit.



       Finally, Appellant claim s that trial counsel was ineffective in that the

attorneys failed to request a definitive ruling as to whether evidence of a th ird

                                             -8-
party defense was admissible. Specifically Appellant claims that counsel shou ld

have asked for a definitive ruling as to wh ether Ricky C ain could testify.

Appellant claims had Cain testified he could have been implicated in the murde r.

Howeve r, proof at the post-conviction hearing shows that trial counsel made a

strateg ic decision not to call Ricky Cain, because coun sel’s investigation revealed

that Cain ha d a stron g alibi for the time of the murder . The decisio n not to call

Cain was a legitimate trial strategy, negating the need for a ruling on the

admis sibility of third par ty defens e. This iss ue is witho ut merit.



       Therefore, for the reasons disc ussed ab ove, the judgm ent of the trial court

is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




                                           -9-
