             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                              Assigned on Briefs September 25, 2002

                    JOANN GAIL ROSA v. STATE OF TENNESSEE

                      Direct Appeal from the Criminal Court for Knox County
                           No. 70102    Richard R. Baumgartner, Judge



                                       No. E2002-00437-CCA-R3-PC
                                              March 17, 2003

The petitioner appeals the dismissal of her petition for post-conviction relief from her conviction for
first degree murder, arguing that the post-conviction court erred in finding that she received effective
assistance of trial counsel. After a thorough review of the record, we conclude that the petitioner
failed to demonstrate either a deficiency in counsel’s performance or a resulting prejudice to her
case. Accordingly, we affirm the dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H.
WELLES, JJ., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Joann Gail Rosa.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                    OPINION

                                                      FACTS

         In 1996, the petitioner, Joann Gail Rosa, was convicted by a Knox County Criminal Court
jury of first degree premeditated murder and was sentenced to life imprisonment with the possibility
of parole. Her conviction and sentence were affirmed by this court on direct appeal, and her
application for permission to appeal to the supreme court was denied. See State v. Rosa,1 996
S.W.2d 833, 840 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1999). The petitioner’s
conviction stemmed from her participation with a codefendant in strangling a man to death to


         1
           The direct appeal opinion refers to the petitioner by the name “Joanna Gail Rosa.” In this appeal, however,
the petitioner’s first name is listed as “Joann” rather than “Jo anna.”
prevent his reporting that the petitioner, her codefendant, and a third individual had robbed a service
station. The direct appeal opinion provides the following account of the circumstances that led to
the murder:

                      On March 25, 1995, the defendant; her co-defendant, Dennis
               Halcomb; the murder victim, James Dalton; and two friends, Teresa
               Dake and Larry Davis, rented two adjoining motel rooms in Athens,
               Tennessee, and spent the evening “partying.” The next day, the group
               decided to spend another evening at the motel. That evening, while
               Dalton and Davis remained at the motel, the defendant, co-defendant
               Halcomb, and Dake robbed the gas station where Dake worked.

                       Early the next morning, on March 27, 1995, the group left
               Athens and drove to Knoxville, stopping at another motel, where they
               again rented adjoining rooms. The defendant, co-defendant Halcomb,
               and Dake expressed concern that Dalton would report the robbery to
               authorities. The defendant said they were going to have to “do
               something” to keep him from “saying anything.” Later, while Davis
               and Dake slept in one of the motel rooms and Dalton slept in the
               other, the defendant and co-defendant Halcomb discussed what to do
               about Dalton. They planned to take Dalton’s wallet and car, and
               Halcomb said he was going to knock Dalton out. The defendant took
               Dalton’s keys and wallet and put them in the room where Dake and
               Davis were sleeping.

                       When the defendant returned, Dalton confronted codefendant
               Halcomb about his missing keys and wallet. Halcomb, who was
               approximately 6'3" and weighed over 200 pounds, began hitting
               Dalton, who was approximately 5'4" and 145 pounds. Halcomb held
               Dalton's neck in a choke-hold and asked the defendant to help him.
               While Dalton was on his knees leaning over the bed, the defendant
               grabbed the front of Dalton's throat and choked him, even while
               Dalton gasped for air and begged her to stop. Halcomb removed
               Dalton's belt from his pants, placed it around Dalton's neck, and told
               the defendant to hold the belt. While Halcomb went to the restroom,
               the defendant choked Dalton with the belt until his face turned blue.
               When Halcomb returned, the defendant checked Dalton for a pulse,
               but did not find one.

                       They drove Dalton's body to an area of town with which the
               defendant was familiar. After the defendant sliced Dalton's throat
               with a box cutter to ensure he was dead, they dumped his body on the
               side of the road, covering it with leaves. They returned to the motel,


                                                 -2-
                   picked up Dake, and traveled in Dalton's car to Illinois to visit the
                   defendant's family and then to Daytona Beach, Florida.

                           Meanwhile, Dalton was reported missing. On April 3, 1995,
                   Sherry Wade, a friend of Dake and the defendant, received a call from
                   the defendant. Knowing Dalton was missing and thinking he might
                   be with them, Wade asked the defendant where Dalton was. At first,
                   the defendant replied she did not know, but then she told Wade "he
                   was gone; he's gone; he's under a tree." A couple of days later,
                   Wade reported this conversation to the McMinn County Sheriff's
                   Department.

                            On April 6, 1995, the defendant, her co-defendant, and Dake
                   were apprehended in a traffic stop while driving Dalton's vehicle in
                   Florida. During an interview by the Florida authorities, the defendant
                   initially denied knowing anything about Dalton's disappearance, but
                   she later drew a map showing where his body was buried. Using the
                   map, Tennessee authorities found the body. The defendant was
                   arrested and waived extradition to Tennessee where she was indicted.
                   Following her jury trial, which was severed from co-defendant
                   Halcomb's trial, the defendant was found guilty of first-degree murder
                   and sentenced to life imprisonment.

Id. at 836.

        On February 29, 2000, the petitioner filed a pro se petition for post-conviction relief.
Counsel was appointed and, on September 11, 2000, an amended petition was filed. The petitioner
asserted trial counsel was ineffective, inter alia, for failing to adequately prepare and investigate the
case, failing to adequately prepare her trial testimony or advise her of her right not to testify, and
failing to investigate, develop, or present an intoxication defense.2

        The petitioner testified at her January 31, 2002, evidentiary hearing that her trial counsel met
with her in jail only three or four times during the year and a half she spent awaiting trial. During
those visits, the main topic of conversation was counsel’s efforts to obtain a plea bargain; however,
trial counsel never informed her of any plea bargain offered by the State. Trial counsel also failed
to inform her of the strategy he intended to employ at trial and, with the exception of the statements
she had made to police, did not discuss the evidence against her. The petitioner said trial counsel
told her that her statements were incriminating, but did not review them with her in detail and did
not prepare her trial testimony. She also claimed trial counsel failed to inform her that she had the



         2
            The petitioner also alleged trial counsel was ineffective for failing to have the tape record ings of he r statements
to po lice played before the jury. T he pe titioner ha s, however, abandoned this latter claim in her ap peal to this court.

                                                              -3-
option of not testifying. However, at a later point in her direct examination testimony, she said she
remembered counsel’s having recommended that she testify on her own behalf at trial.

        The petitioner testified that she had had several beers, “a few Zima’s,” “a bottle of Jack
Daniels,” and several glasses of vodka in the hours before the murder. She did not “actually go into
detail” with trial counsel regarding what and how much she had drunk, but she did tell him that she
had been drinking vodka and beer, that she had drunk “quite a bit,” and that there were things that
occurred that she could not remember. However, trial counsel never discussed using her intoxication
as a possible defense at trial.

        On cross-examination, the petitioner claimed that she had been too drunk to know exactly
what she was doing at the time of the murder. She also asserted that her participation in the murder
was coerced by threats from her codefendant, Halcomb,3 whom she feared. She had no memory of
having slashed the victim’s neck after he was strangled to ensure that he was dead; she had learned
that and other details of the murder that she had included in her statements to police from her “charge
partners” the morning after the crime. However, in spite of her claim that she was too intoxicated
to remember much of what had occurred, the petitioner provided numerous specific details about the
murder as her cross-examination testimony continued. The petitioner acknowledged there was
nothing preventing her from leaving the room during the murder, and that she had not tried to
telephone anyone for help.

        The opinion of this court on the direct appeal of the petitioner’s conviction provided details
of her confession and her actions following the crime:

                  According to the defendant's confession, she and Halcomb planned
                  to take Dalton's wallet and car. The defendant admitted helping
                  Halcomb choke Dalton, first with her hand and then with Dalton's
                  belt, even though he begged her to stop. After Halcomb left the
                  room, the defendant continued to choke Dalton until his face turned
                  blue. When asked what she was trying to accomplish by choking
                  him, the defendant told authorities, "Kill him, I guess." These
                  circumstances establish that the defendant acted after the exercise of
                  reflection or judgment and with a previously formed intent to kill,
                  which supports a finding of premeditation.

                          The evidence also showed that immediately after the killing,
                  the defendant helped choose an isolated area to dump Dalton’s body
                  and then covered the body with leaves to prevent detection. The
                  defendant told authorities that she kept Dalton's wallet in order to
                  prevent the body from being identified. She also admitted in her


         3
           W e note tha t the petitioner’s codefendant’s name is spelled “Halcombe” throughout the transcript of the
evide ntiary hea ring. However, we will utilize the sp elling co ntained in the dire ct app eal op inion in this c ase.

                                                         -4-
                confession that she sliced Dalton's throat to ensure he was dead.
                Then, she, co-defendant Halcomb, and Dake fled to Illinois, where
                they visited the defendant's family as if nothing had happened.

Rosa, 996 S.W.2d at 837 (footnote and citations omitted).

       As explained in the opinion of this court on direct appeal, at trial the petitioner had testified
contrary to her confession, minimizing her role in the slaying of the victim and explaining that she
had cut his throat as an act of compassion:

                        We recognize that at trial, the defendant contradicted her
                confession, testifying that she did not choke Dalton or intend to kill
                him; that she loosened the belt around his neck in order to allow him
                to breathe; that Halcomb, who was upset, choked Dalton until he
                died; and that she cut Dalton's throat solely to prevent his suffering.

Id.

         Trial counsel testified he had been practicing law for eleven years as of the time of the
hearing, and estimated he had participated in twenty to twenty-five jury trials. He said he had been
appointed to represent the petitioner in May 1995, roughly a month after the murder occurred. As
part of his investigation, he had obtained and reviewed copies of the statements the petitioner had
made to police. Trial counsel testified that he had “tried a great number of murder cases and other
cases” during his career, but had “never had a confession any more incriminating” than the one in
this case. Because the petitioner had made such incriminating statements, he had thought “the best
trial [they] could have . . . would be no trial at all,” and therefore concentrated his efforts on working
to obtain a plea bargain, as well as trying to suppress the petitioner’s statements.

         Trial counsel testified he kept the petitioner informed of the progress in her case and the plea
negotiations on her behalf. In addition to their four meetings at the jail, they also met at least half
a dozen times prior to various motions or hearings. He told the petitioner of the State’s only plea
offer, which was life, plus ten years for a conspiracy count the State was going to add to the
indictment. Trial counsel said he explained to the petitioner that he did not think it was “any offer
at all,” because the conspiracy charge had not even been made at that time, and that they ultimately
beat the offer with the life sentence the petitioner received at the end of the trial.

        Trial counsel testified he was aware from his conversations with the petitioner and his review
of her statements that she had been drinking beer and vodka on the evening of the murder, but did
not know that, supposedly, she had been drinking Jack Daniels as well. Regardless, he did not think
voluntary intoxication was a viable defense. The petitioner’s statements to police were very fact-
specific, and there was nothing in his conversations with the petitioner to indicate that she had not
been aware of what she was doing at the time of the murder. Trial counsel explained:



                                                   -5-
                       First of all, I didn’t see anything in my conversation with [the
               petitioner] to indicate that she was intoxicated to the point that it
               would even be an issue. We are talking about that now, but nowhere
               in my speaking with her and nowhere in the testimony and the
               statements that I had seen had there been any talk about that level of
               intoxication. In my experience, when you are going to use that to
               negate an element of premeditated murder, you are talking about a
               pretty intoxicated state, and I just did not gather that from my
               speaking with [the petitioner] and the things that I was reading about
               her statements[.]

Trial counsel said he was not aware of any case in Knox County during the eleven years he had
practiced law in which a defense of voluntary intoxication had been successful. He thought it was
a “very risky” defense because, in his opinion, “if [the] jury believes for a moment that you are trying
to hide behind some voluntary intoxication, and they think that you did in fact know what you were
doing, . . . they will see that as an excuse, and they will punish you for it.”

         Trial counsel said he recommended that the petitioner testify because he thought they had no
choice, once the statements were admitted, other than to have her attempt to explain certain parts of
them to the jury. Although he did not go over the statements with the petitioner in person before
trial, he did provide her with copies of them to review with instructions that she mark the parts that
she remembered and any parts that were inaccurate. Trial counsel said he did not know how he
could have prepared the petitioner any differently, testifying that, in his opinion, “there wasn’t a
whole lot of preparation that [they] could do” with respect to the statements. He testified he talked
at length with the petitioner prior to trial about the facts surrounding the murder, including her
relationship with Halcomb, his intimidating size, and the fear she had felt of him, and that he brought
out those details during her direct examination at trial. He also attempted, unsuccessfully, to have
Halcomb called as a witness at trial, knowing he would plead his Fifth Amendment right against self-
incrimination, but in doing so, the jurors would see how large he was. In trial counsel’s opinion,
there was nothing he could have done differently in the case.

        At the conclusion of the post-conviction hearing, the court made oral findings of fact and
conclusions of law and, on March 12, 2002, entered an order dismissing the petition, finding that the
petitioner had failed to sustain her burden of demonstrating ineffective assistance of counsel.
Although the order dismissing the petition states that the court’s “Memorandum Opinion shall be
incorporated herein by reference,” there is no memorandum opinion in the record. Thereafter, the
petitioner filed a timely appeal to this court, challenging the post-conviction court’s dismissal of her
petition.

                                             ANALYSIS

       The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held


                                                  -6-
in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts
of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact
and law, is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at
461.

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient, and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).


                                                   -7-
        Initially, we note the post-conviction court announced its findings at the conclusion of the
hearing and directed the court reporter to transcribe them into a memorandum opinion. However,
there are no written findings in the technical record. Although the technical record index refers to
a multiple-page order dismissing the petition, the reference is actually to a transcript of the
sentencing phase of the petitioner’s convicting trial. Nevertheless, the post-conviction court's
findings and conclusions are sufficiently comprehensive to allow for proper appellate review.

        The petitioner contends trial counsel was ineffective for failing to adequately investigate and
prepare for trial and failing to investigate or develop an intoxication defense. She argues that
counsel was deficient for failing to discuss his trial strategy or defense theory with her, neglecting
to inform her of her right not to testify or adequately prepare her trial testimony, and for failing to
explore or develop her intoxication as a defense, despite evidence that she was drinking heavily at
the time of the murder. The petitioner contends that “had the jury been fully apprised of her
inebriated condition at trial, a different result . . . would have been obtained.” The State responds
that the petitioner failed to establish that trial counsel’s performance fell below the range expected
of an attorney in a criminal case or resulted in prejudice to the outcome of her case. We agree with
the State.

         The petitioner claimed that trial counsel met with her only three or four times prior to trial.
She said he failed to communicate any plea bargain offered by the State, failed to inform her of her
right not to testify, failed to discuss his trial strategy or an intoxication defense, and failed to prepare
her trial testimony. Trial counsel, by contrast, testified that he met with the petitioner at least ten
times before trial, with some of these meetings occurring in jail and others as she was brought to
court. He said he discussed the facts of the case with her, including the statements she had provided
to police and her fear of her codefendant; communicated the only plea bargain offered by the State;
and prepared her trial testimony by, among other things, providing her with a copy of her statements
for her to review and mark. Trial counsel acknowledged he concentrated at the outset on suppressing
the statements and attempting to negotiate a plea bargain, explaining that the petitioner’s detailed
confession made him believe that their best option was to seek a plea bargain to avoid going to trial.
However, when it became clear that the statements were going to be admitted and they were going
to trial, he recommended that the petitioner take the stand. Trial counsel testified:

                        There is nothing at all that we could have done differently in
                my opinion. This case boiled down to a statement, a confession, a
                series of confessions that were not contradictory of one another.
                Once those statements came in, we had no choice but to go forward.
                Yes, I advised her to testify. It was my opinion that, once those
                statements were coming in, we had no choice but to explain to the
                jury, and I explained to [the petitioner] that, in my opinion, we didn’t
                have any choice but to testify; because, if we just sat silent, and all
                they were going to do is hear these things without her explaining
                certain parts of it, that we would have no chance of success.



                                                    -8-
       As to this issue, the post-conviction court found:

                        But she claims here today that [trial counsel] was ineffective
               in his assistance and raises three or four different specific charges, the
               first being that [trial counsel] failed to adequately consult with her
               and prepare her for this trial. She claims that she only met with him
               three times during the period between April and September – April,
               ‘95 to September, ‘96, and that their discussions were generally
               confined to the issue of what plea agreement, if any, was
               forthcoming.

                        [Trial counsel] acknowledges, candidly, that he did not visit
               with her a great number of times in the jail, maybe on four occasions
               in the jail, as I recall his testimony. However, he goes on to explain
               that, on a number of occasions when [the petitioner] would be
               brought to the courtroom for motion hearings, that they would have
               the opportunity to meet and discuss trial preparations and trial
               strategy in the courtroom, in addition to his meetings in the jail.

               ....

                       With regard, however, to this claim that there was ineffective
               discussions between the two of them, while there may not have been
               as many discussions in this case as there are in some cases, I have
               failed to hear any evidence presented by [the petitioner] how that
               affected her adversely in this case.

                        [Trial counsel’s] testimony is that he did meet with her on a
               number of occasions, both in the courtroom and in the jail; that he
               investigated the case, attempted to talk to the witnesses that were
               identified to him and indeed visited the scene, obtained evidence to
               familiarize himself with the case, but that his main thrust was in an
               effort to negate the damaging effect of this statement that was given
               by [the petitioner] to law enforcement officers.

        Trial counsel’s concentration on suppressing the statements and obtaining a plea cannot be
considered unreasonable, given the incriminating nature of the statements the petitioner made to
police. Furthermore, his testimony regarding the level of communication he maintained with the
petitioner and his investigation and preparation for trial supports the post-conviction court’s finding
that he provided effective assistance to the petitioner at trial.

       The petitioner also contends that trial counsel was ineffective for failing to investigate or
develop a voluntary intoxication defense. However, by her own testimony, she failed to inform him


                                                  -9-
of all that she had had to drink.4 Moreover, even if she had told him everything, we agree with trial
counsel that the level of detail the petitioner was able to provide about the murder belies her claim
of having been too intoxicated to form the specific intent to commit first degree murder. During her
testimony at the evidentiary hearing, the petitioner first claimed that she had been too intoxicated to
remember much of what occurred. She then went on to provide a substantial number of details about
the murder, including that Halcomb struck the victim in the chest and bent him over the bed as he
began strangling him; that the victim’s face turned a “bluish color” as he was being choked; that she
fearfully obeyed Halcomb’s instructions that she “had better help” by pressing her hands on the front
of the victim’s neck for several minutes while he removed the victim’s belt and placed it about his
neck; that Halcomb then choked the victim by tightening the belt and made her help by pulling on
the belt also; that Halcomb went into the adjoining room at one point and she loosened the belt
around the victim’s neck while he was gone; that the victim was still breathing when Halcomb
returned to finish the job; and that she helped dispose of the victim’s body after he was dead.

         As to this issue, the post-conviction court found:

                          [The petitioner] also raises this issue of the fact that her level
                  of intoxication was not explored as a defense.

                           Again, my recollection in this case has been – it has been three
                  or four years since this case was tried – but my recollection was that
                  there was a good deal of testimony about what went on in this motel
                  – or I think there were two motel rooms – and the fact that they were
                  partying, and that there was drinking going on.

                          As I recall, they had gone to a 711-type establishment, and I
                  think some people stole some items from that establishment,
                  including some alcoholic beverages. And there was a good deal of
                  testimony about what had gone on – all the things that had gone on at
                  this motel leading up to the incident in which this individual lost his
                  life, and [trial counsel] testifies here today that he did not – that [the
                  petitioner] did not disclose to him what she now claims to be this
                  level of intoxication that she had at the time.

                           Again, I have heard nothing here today that convinces me that
                  [trial counsel] was ineffective in developing the facts of this case or
                  presenting these facts to the jury. I don’t think this issue of
                  intoxication rises to the level of ineffectiveness by [trial counsel].

         4
          W e note that according to an excerpt from her trial testimony which is an appendix to her brief, she was asked
the general question, “What were you drinking?” and responded, “Vodka and beer.” Although this general question
would have a llowed the petitioner to explain that she also had been drinking Jack Daniels, she did not do so, nor did she
explain at the post-conviction hearing why she had not told the jury of all the alcohol she was then claiming she had
consumed at the time of the murder.

                                                          -10-
         As we understand, the petitioner makes a twofold argument as to trial counsel’s not
presenting an intoxication defense: his pretrial investigation was ineffective because he did not
discover that she was intoxicated at the time of the crime, and his trial performance was ineffective
because he did not proceed with an intoxication defense. However, the facts of the killing undercut
these claims. First, trial counsel’s only sources for learning of the petitioner’s level of intoxication
at the time of the crime were the petitioner, herself, and the others involved, all presumably
represented by counsel: her codefendant, Dennis Halcomb, who had helped her murder the victim;
Teresa Dake, their companion, with whom Halcomb had just robbed a gas station; and Dake’s
companion, Larry Davis. Trial counsel testified at the hearing that he knew if Halcomb were called
as a witness, he would assert his Fifth Amendment privilege against self-incrimination. Thus, the
petitioner’s claim as to the benefit of an intoxication defense ignores the practical problems in
presenting such a defense, and the fact that the only other persons available to testify as to her
intoxication would have had reasons for not wanting to testify and incriminate themselves.
Additionally, we note that while the petitioner, herself, could have testified as to her level of
intoxication, she did not do so, and now suggests that she may not have wanted to testify at the trial.
Other reasons are apparent as to why the petitioner’s trial attorney would not have attempted to
present an intoxication defense. The recitation of the facts, as set out in the direct appeal, shows that
the petitioner had substantial recall of the events, as we have stated, and also reveals that, upon her
subsequent arrest in Florida, she drew a map for authorities accurate enough to result in the recovery
of the victim’s body. Thus, we conclude, as did the trial court, that the petitioner failed to establish
that trial counsel was ineffective for not presenting an intoxication defense.

        The petitioner has failed to acknowledge the difficulty faced by her trial counsel after he was
unsuccessful in suppressing her statement, according to which, after choking the victim until his face
turned blue with a belt around his neck, she then used a box cutter to slash his throat. The petitioner
alleged on appeal that trial counsel “did very little to prepare for the eventual trial,” stating that
counsel met with her three or four times while she was awaiting trial, although meeting in court on
other occasions; did not advise her that she had a choice as to whether to testify at the trial; and did
not discuss “trial strategy, defense theory or how counsel intended to present her case.”
Additionally, she claims that she and trial counsel “did not go over in detail the statements she gave
to authorities,” although they “were the heart of the prosecution’s case.” However, the petitioner did
not suggest, either at the hearing or in her appellate brief, how her defense either would have
changed or been strengthened had she met with trial counsel on more occasions and discussed trial
strategy. The record fully supports the finding of the post-conviction court that the petitioner failed
to establish that trial counsel was ineffective.

                                           CONCLUSION

        We affirm the dismissal of the petition for post-conviction relief.

                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE


                                                  -11-
