             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                 FILED
                          NOVEMBER 1997 SESSION
                                                           February 23, 1998

                                                          Cecil W. Crowson
LUTCHER EIDSON,               )                          Appellate Court Clerk
                              )
             Appellant,       )    No. 01C01-9607-CR-00295
                              )
                              )     Davidson County
v.                            )
                              )     Honorable Thomas H. Shriver, Judge
                              )
STATE OF TENNESSEE,           )     (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

Geoffrey Coston                    John Knox Walkup
2813 West End Ave.                 Attorney General of Tennessee
Nashville, TN 37203                       and
                                   Clinton J. Morgan
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   John Zimmerman
                                   James Sledge
                                   Assistant District Attorneys General
                                   Washington Square
                                   222 2nd Avenue North
                                   Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Lutcher Eidson, appeals as of right from the denial of his

petition for post-conviction relief by the Davidson County Criminal Court relative to his

1989 convictions for two counts of assault with intent to commit first degree murder,

one of which resulted in bodily injury. The convictions were affirmed on appeal. State

v. Lutcher Eidson, No. 01C01-9004-CR-00097, Davidson County (Tenn. Crim. App.

Dec. 12, 1990), app. denied (Tenn. Feb. 25, 1991). He is presently in the custody of

the Department of Correction serving an effective sentence of forty-five years as a

Range II, persistent offender. The petitioner contends that the trial court erred in

concluding that he received the effective assistance of counsel at his trial. We

disagree.



              In the direct appeal of the conviction, this court succinctly stated the

evidence as follows:

              Several witnesses testified the appellant was one of two men
              who fired shots at a group of people who were standing in a
              parking lot at a service station. One person was critically
              injured by the shooting. There was no evidence submitted to
              refute this evidence presented by the state. The appellant
              argues the evidence is insufficient because one of the state’s
              witnesses gave testimony inconsistent with the testimony of
              other state’s witnesses.

In this post-conviction case, the petitioner mainly complains about his attorney’s failure

to interview or call as witnesses people who would help the petitioner’s case, including

presenting an alibi. He also complains about lack of cross-examination of certain state

witnesses.



              At the evidentiary hearing, the petitioner testified regarding named

individuals who, he claimed, would support an alibi defense. His attorney

acknowledged not interviewing the purported alibi witnesses, including the petitioner’s

ex-wife, but testified that the petitioner admitted to him that he, the petitioner,


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committed the shootings. The attorney stated that he was not going to assist in perjury.

When questioned about not pursuing other potential witnesses to the events, the

attorney stated that the owner of a nearby book store was uncooperative and that a

severed codefendant also refused to talk to him.



              Under the law governing these proceedings, to establish that he received

the ineffective assistance of counsel at trial, it was incumbent upon the petitioner to

prove by the preponderance of the evidence that his counsel’s performance fell below

the range of competence demanded of attorneys in criminal cases and that such

improper performance prejudiced him so as to deprive him of a fair trial. See Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Cook, 749

S.W.2d 42, 45 (Tenn. Crim. App. 1987); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). In this appeal, the burden is upon the petitioner to demonstrate that the

evidence preponderates against the trial court’s findings. See Rhoden v. State, 816

S.W.2d 56, 60 (Tenn. Crim. App. 1991).



              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.



              In this respect, the crucial defect in the petitioner’s case is that the

potential witnesses and the unexamined witnesses were not called to testify at the post-

conviction evidentiary hearing. It is imperative that the witnesses testify at the

evidentiary hearing in order for the trial court to determine the potential merit of the

evidence. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,

even if the attorney’s lack of witness investigation and lack of cross-examination were




                                              3
to be viewed as deficient performance, the petitioner has failed to show that any

prejudice to him resulted from such deficiency.



             The trial court noted that the petitioner’s attorney had vigorously contested

the identification evidence presented by the state at trial and had performed above

average in his actions. It concluded that the petitioner received the effective assistance

of counsel. With the record failing to show how the petitioner was prejudiced by the

claimed lack of investigation and lack of cross-examination by his attorney, we are

bound by the trial court’s determinations. The judgment is affirmed.



                                                  _______________________________
                                                  Joseph M. Tipton, Judge

CONCUR:



__________________________
John H. Peay, Judge



__________________________
David H. Welles, Judge




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