             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      September 28, 2004 Session

              BRIAN SHANE CALDWELL v. STATE OF TENNESSEE

                          Appeal from the Criminal Court for Knox County
                             No. 43082    Richard Baumgartner, Judge



                    No. E2003-02122-CCA-MR3-PC - Filed November 10, 2004


The Defendant, Brian Shane Caldwell, was convicted by a jury of first degree felony murder and first
degree burglary. He was sentenced to concurrent terms of life imprisonment and ten years,
respectively. The Defendant’s convictions and sentences were affirmed on direct appeal. See State
v. Brian Shane Caldwell, No. 1176, 1988 WL 94393 (Tenn. Crim. App., Knoxville, Sept. 13, 1988).
The Defendant subsequently filed for post-conviction relief1 alleging, inter alia, that he had received
ineffective assistance of counsel at trial. After an evidentiary hearing, the trial court denied relief;
this appeal followed. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Richard W. Clark, III, Knoxville, Tennessee, for the appellant, Brian Shane Caldwell.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                    OPINION

       A brief review of the facts adduced at the Defendant’s trial will be helpful. See generally
Caldwell, 1988 WL 94393. The Defendant rented an upstairs apartment from the victim, sixty-
seven-year-old Lucille Gibson. Ms. Gibson lived in the lower rooms of the house in which the
apartment was located. On the day the Defendant moved in, he had an argument with Ms. Gibson
in which she accused him of having stolen some of her keys and some money. As a result of this



         1
          The Defendant filed his petition for post-conviction relief on January 25, 1991. The hearing on the petition
was held in October 2002.
argument, Ms. Gibson ordered the Defendant to vacate the apartment. The Defendant demanded his
rent money be returned, but Ms. Gibson refused to do so.

        Later that night, according to the State’s proof, the Defendant returned to Ms. Gibson’s
residence with his girlfriend, Diana Adkins. According to Ms. Adkins, the Defendant intended to
recover his rent money. After arriving at Ms. Gibson’s residence, the Defendant and Ms. Adkins
entered her room. The Defendant restrained Ms. Gibson and placed a nightcap in her throat. Ms.
Gibson eventually suffocated. The Defendant ransacked Ms. Gibson’s living quarters, taking a
televison set, some hot rollers, and a curling iron. The Defendant and Ms. Adkins then left the scene.

        Ms. Adkins’ brother, John Adkins, also testified. He stated that the Defendant had admitted
to him that he killed the victim.

        Rhonda Knight testified on behalf of the defense that Ms. Adkins told her that she had placed
the nightcap in the victim’s mouth.

        The State’s case rested heavily on the testimony of Ms. Adkins, who was about sixteen years
of age at the time of the murder. Although she was admittedly at the scene of the crimes, she was
not charged with any criminal offense. Nevertheless, during its deliberations, the jury queried of the
trial court whether it could find Ms. Adkins guilty of anything.

        The State sought the death penalty against the Defendant for Ms. Gibson’s murder.
Accordingly, the Defendant was assigned two trial lawyers for his defense: Glen Rutherford and
Raymond Shirley, Jr. Mr. Shirley stated that the defense team was convinced that Ms. Atkins had
played an active role in the crimes against Ms. Gibson. However, they were never able to prove that
the State declined to prosecute her in exchange for her testimony against the Defendant. The basic
theory of defense was to force the State to meet its burden of proof: that the Defendant was present
at the scene and participated in the crimes. As a corollary, the Defendant’s lawyers intended to
attack Ms. Adkins’ credibility and demonstrate that she was the actual killer.

        Mr. Shirley acknowledged that his fee request reflected that he had spent a total of 33.6 hours
preparing for trial. He stated, however, that his fee requests frequently did not reflect all time
actually spent preparing for a case. When queried about his opinion of the defense’s performance,
Mr. Shirley stated that the only thing he would have done differently would have been to call a
particular witness that they had tried, unsuccessfully, to find. This witness, Barbara Slusher, would
supposedly have testified that Ms. Adkins had told her that she had participated in killing the victim.
Mr. Shirley stated further, however, that he did not think Ms. Slusher’s testimony would have
resulted in the Defendant’s acquittal.

         Glen Rutherford also testified. His fee request reflected that he had spent forty-five hours
in trial preparation. Like Mr. Shirley, the only thing he would have done differently at trial would
have been to call Ms. Slusher, had she been available. Mr. Rutherford admitted that he had



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acknowledged the Defendant’s presence at the crime scene during opening statements.2 He also
stated, however, that the Defendant had told them that he had been there.

         In response to the Defendant’s allegations that his lawyers had not prepared adequately for
his trial, and further, that they threw away his defense by acknowledging in opening statement his
presence at the scene of the crime, the trial court found as follows:

                  [The Defendant] also claims ineffective assistance of counsel on behalf of his
         two trial counsel. While the [Defendant] did not testify as to any specific
         shortcomings, his post-conviction counsel did vigorously cross-examine them during
         the hearing. [The Defendant] complains that trial counsel’s efforts to implicate
         Diana Adkins, the state’s eyewitness, as the true culprit was misplaced. They claim
         that defense counsel should have taken a different trial tactic, specifically that Mr.
         Caldwell was not present at the crime scene. [The Defendant] was adamant that the
         only evidence of his presence at the scene was the testimony of Diana Adkins and
         trial counsel’s opening statement indicating he was present. A review of the
         testimony at trial, however, also establishes that John Adkins testified as to an
         admission made to him by the [Defendant] that not only was the [Defendant] present,
         but was responsible for the death of Ms. Gibson. In addition, a review of the record
         supplies overwhelming circumstantial evidence that puts Mr. Caldwell at or near the
         scene of this crime at pertinent times. Further, Mr. Caldwell had acknowledged to
         his trial counsel that he was present at the scene, [and] attempts by them to [elicit]
         testimony to the contrary would have been unethical and inappropriate.
                  ...
                  Trial counsel testified that their approach to this case was to establish that
         Diana Adkins was the truly responsible party for the death of Ms. Gibson. It is
         unquestioned that they vigorously cross-examined her and established inconsistencies
         in her prior statements. Indeed, the jury returned a note during deliberation asking
         if they could also find Ms. Adkins guilty of some transgression.
                  This court is of the opinion that trial counsel in this case adequately prepared
         and presented a defense on behalf of Mr. Caldwell. We do not judge trial counsel’s
         action in the cool reflection of 20/20 hindsight, but rather determine whether trial
         counsel is performing in an effective manner to the extent that one can rely on the
         outcome of the proceeding. In applying the standards of Strickland v. Washington,
         466 U.S. 668 (1984), and Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), this court
         is of the opinion that trial counsel did perform within the standards set forth in those
         decisions and their progeny. For the foregoing reasons, this court finds this petition
         to be without merit and DENIES post-conviction relief.



         2
          During his opening statement, Mr. Rutherford claimed that Ms. Adkins had “goaded [the Defendant] into going
back out to Ms. Gibson’s house,” thereby implicitly admitting that the Defendant had been with Ms. Adkins at the crime
scene.

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In this appeal, the Defendant contends that the trial court erred in denying post-conviction relief,
arguing that the proof demonstrated that his lawyers’ trial preparation was inadequate; that they had
no clear defense strategy; and that counsel’s reference in opening statements to the Defendant’s
presence at the scene was “deficient performance per se.”

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

         A lawyer’s assistance to his or her client is ineffective if the lawyer’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. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The Defendant
in this case bears the burden of establishing both of these components by a preponderance of the
evidence. See McGee v. State, 739 S.W.2d 789, 790 (Tenn. Crim. App. 1987).3 The defendant’s
failure to prove either deficiency or prejudice is a sufficient basis upon which to deny relief on an
ineffective assistance of counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--


         3
         In 1995, Tennessee’s Post-Conviction Procedure Act, Tennessee Code Annotated section 40-30-101 et seq.,
was amended to require the petitioner to prove his or her grounds for post-conviction relief by “clear and convincing”
evidence. See Tenn. Code Ann. § 40-30-110(f).

                                                         -4-
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

         This case boiled down to whether the jury believed the State’s eyewitness to the murder,
Diana Atkins. The Defendant does not contend that his lawyers were ineffective in their attacks on
her credibility. Rather, his chief complaint is that they bolstered her testimony by admitting during
opening statement that he was present at the crime scene. We agree that, where the theory of defense
is to force the State to carry its burden of proof, any admission of facts supporting an element of the
crime during a defendant’s opening statement may be unwise and potentially deficient
representation. However, it is clear in this case that the jury accredited Ms. Atkins’ testimony that
the Defendant participated in killing the victim, thereby implicitly finding that the Defendant was
present at the scene. We have no difficulty concluding that the jury would have reached this same
result even if defense counsel had said nothing during opening statement other than, “You should
not believe a word the State’s witnesses say.” Ms. Atkins’ testimony was corroborated by other
evidence, and the Defendant had no alibi. In short, while the Defendant’s lawyer should not have
admitted during opening statement the Defendant’s presence at the scene of the crime, the Defendant
has failed to demonstrate that he was prejudiced thereby. Accordingly, his claim of ineffective
assistance of counsel on this ground is without merit.

       With respect to trial preparation, the Defendant has offered no proof of how any additional
time and/or investigation and/or meetings with the Defendant would have altered the verdict in his
favor. At the post-conviction hearing, the Defendant put on no additional witnesses that should have
been called at trial, but were not, nor did he produce any physical evidence that his lawyers should
have introduced at trial, but did not. The Defendant basically contends that we should view his
lawyers’ trial preparation as inadequate based simply on the number of hours they spent. We decline
to adopt, however, such a formulaic approach to determining the effectiveness of legal
representation.

        Similarly, we reject the Defendant’s contention that his lawyers were ineffective because they
lacked a “clear defense strategy.” In some criminal cases, especially where the defendant has
admitted to his lawyers his presence at the scene, the only strategy available is “the State cannot
prove its case beyond a reasonable doubt.” That was the strategy adopted in this case and defense
counsel were so effective in impeaching Ms. Adkins that the jury wanted to convict her of some
offense: in spite of the fact that she had never been charged with anything. The Defendant has failed
to demonstrate what else his lawyers should have done to attack the State’s case, and has therefore
failed to establish that he was prejudiced by his lawyers’ performance.

        We agree with the trial court that the Defendant has failed to prove that he received the
ineffective assistance of counsel at trial. Accordingly, we affirm the judgment of the trial court.




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      ___________________________________
      DAVID H. WELLES, JUDGE




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