         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           JANUARY SESSION, 1999         April 22, 1999

                                                     Cecil W. Crowson
ALVIN SEAGROVES,               )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9711-CC-00553
                               )
      Appe llant,              )
                               )
                               )    GRUNDY COUNTY
VS.                            )
                               )    HON. J. CURTIS SMITH,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF GRUNDY COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

PHILIP A. CONDRA                    JOHN KNOX WALKUP
District Public Defender            Attorney General and Reporter
P.O. Box 220
200 Betsy P ack Drive               KAREN M. YACUZZO
Jasper, TN 37347                    Assistant District Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243-0493

                                    J. MICHAEL TAYLOR
                                    District Attorney General

                                    THOMAS D. HEMBREE
                                    Assistant District Attorney General
                                    Jasper, TN 37347



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Alvin Seagroves, appeals the trial court’s dismissal of his

petition for post-conviction relief following an evidentiary hearing.           In 1974,

Defendant was convicted by a jury of three counts of first degree murder and one

count of assau lt with intent to c omm it first degree murde r. He was senten ced to

life imprisonment for each murder and not less than six years or more than

twenty-one years for the assault. His convictions and sentences were affirmed

on appea l. State v. Alvin Seagroves, Nos. 730-733 (Tenn. Crim. App., Nashville,

Sept. 15, 1976). In 19 81, Defend ant filed a petition for post-c onviction relief

which was dism issed by the trial court witho ut an evidentiary he aring.            The

dismissal of that petition was affirm ed on a ppeal. Alvin Seagr oves v. Sta te, No.

81-182-III (Ten n. Crim. App ., Nashville, Jan. 22, 19 82).



       In 1989, Defendant filed the petition for post-conviction relief which is being

considered in the case at ba r. After conducting a n evidentiary hearing, the trial

judge entere d an o rder de nying r elief. It is from th is order denying relief that the

Defendant appeals. In this appeal, he contends (1) that the State failed to

provide evidenc e favorab le to the de fense p rior to trial in violation o f Brady v.

Maryland, 373 U .S. 65 (19 63); (2) tha t the court denied him a fair trial by

delivering erroneous jury instructions; and (3) tha t he did not receive th e effective

assistan ce of cou nsel at trial. W e affirm the denial of re lief by the trial co urt.



       If afforde d a po st-con viction e videntia ry hea ring by the trial c ourt, a

petitioner must do m ore than m erely present evidence tending to show



                                           -2-
incompetent representation and prejudice; the petitioner must prove factual

allegations by a prep ondera nce of the evidenc e. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1974) (superseded by Tennessee Code Annotated § 40-30-

210(f) (requiring clear and convincing evidence)). When an evidentiary hearing

is held, findings of fact made by that court a re con clusive and b inding on this

Court unless th e eviden ce prep ondera tes aga inst them . Coop er v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te, 789 S.W.2d 898, 899

(Tenn. 19 90)).



                               I. BRADY VIOLATIONS

       In order to prove a d ue proces s violation under Brady v. Maryland, 373

U.S. 83 (1963), Defendant must show tha t (1) he r eque sted th e alleg edly

withhe ld information, (2) the State suppressed the information, (3) the information

was favorable to the accused, and (4) the inform ation wa s mate rial. State v.

Edgin , 902 S.W.2d 387, 389 (Tenn. 1995). When there has been a general

request for information, as in this ca se, “the undis close d inform ation is ‘mate rial’

if it ‘creates a reasonable doubt that did not otherwise exist.’” Id. (quoting United

States v. Agurs, 427 U.S. 97, 112 (1976)). Therefore, “the omission must be

evaluated in the c ontext of the entire reco rd.” Agurs, 427 U.S. at 112.



       Defendant claims that the S tate failed to deliver three pretrial state ments

which would have been favorable to his defense—namely, statements made by

Phyllis Gregory, Emmett Paul, and Linda Nunley. On this issue, we find that

Defendant has failed to sustain his burden of proving his factual allegations by

a preponderance of the evidence.




                                          -3-
       Defendant asserts in his brief that attempted murder victim Phyllis Gregory,

Defe ndan t’s former girlfriend and mother of their child, failed to report to medical

personnel at Erlan ger H ospita l that sh e had been shot in the neck. Accord ing to

Defen dant, this information could have been used on cross-examination to

contradict Greg ory’s statement at trial that Defendant shot her in the ne ck before

he sho t her in the a bdom en.



       The medical records located in the technical record are for the m ost part

illegible. Furthe rmor e, Gre gory w as no t adm itted to E rlange r until two days after

the incident a t issue. It is unreasonable to imagine that Gregory postponed

treatment for two days; therefore, these records are incomplete for lack of entries

accounting her initial treatment. The absence of notation for a gunshot wound

to the neck in the Erlanger Hospital records does not constitute a statement

favora ble to the defense.       As the post-conviction court noted, “T he record

contains no proof Ms. Gregory failed to report the neck wound upon her initial

admis sion to the Sewa nee H ospital im media tely after the s hooting .”



       In additio n, even if Greg ory’s statement at trial did constitute a statement

favora ble to the defen se, the re is no evide nce in the post-con viction trans cript to

show that the Sta te posse ssed the informa tion but with held it.          Finally, the

statement is not material in the sen se of crea ting a reas onable doubt. According

to the post-conviction court’s findings of fact, after Defendant shot the four victims

in this case, “[h]e then returned to his automobile, secured a carbine and returned

to the Metcalf car where all of the adults lay wounded or dead a nd proc eeded to

empty the ca rbine into the autom obile.”




                                          -4-
       The next alleged, undisclosed statement is that of Emmett Paul. According

to Defendant, Paul stated that the car containing the victims was parked when

Defendant’s car pu lled up besid e it, exited the ca r, and b egan shoo ting. His

theory is that th is statement wo uld have sho wn the jury that the victims were

“lying in wait” for him. However, the statement was never introduced into the

post-conviction record. The only evidence tending to show that Paul’s statement

was made does n ot constitu te “evidence” at all. Rather, post-conviction counsel

hypot hetica lly inquire d of De fenda nt’s trial c ouns el, “[I]f there was a witness that

said the blue Ford Torino was parked and sitting still when the red car drove up,

would that have been contrary to [testimony at trial]?” This, without more, does

not prove that the State possessed a statement which it withheld from the

defense; and Defendant provided nothing more.



       Finally, Defendant argues that the State should have disclosed a statement

by Linda Nunle y in which she stated that Defendant was shooting at their car at

the time the State alleged he shot victim Johnnie Metcalf in the back. Post-

convic tion counsel asked D efenda nt’s trial coun sel, “If this wom an said . . .

[John nie Metcalf] was run ning toward Geary’s holding her side hollering for help.

Alvin Seagroves was at this time firing the rifle towa rds the blue c ar . . . . [W ]ould

this have been important inform ation [to the defense] that he was too busy

shooting at the car to be shooting at her?” This statement by post-conviction

counsel while asking a question of trial counsel does not prove that the statement

was made by Nunley, nor does it prove that the State possessed such a

statem ent.




                                           -5-
       Post-conviction counsel repeatedly asked such hypothetical questions of

the trial counsel, but never introduced any of the alleged s tateme nts into the post-

conviction record. When one of Defendant’s trial counsel questioned the source

of the statement by saying, “If she, in fact, said what you said she said, and if, in

fact, I had that statem ent, I probably wou ld have cross-e xamine d her as to that

point.” Post-conviction counsel responded, “Surely you don’t think I just made

that whole conversation up?” This Court is not in a position to assume facts

where n o eviden ce has been e ntered.



                              II. JURY INSTRUCTIONS

       Defendant contends that the trial court erred by improperly instructing the

jury. Specifically, he argues that the trial judge erred in its char ge on (1) par ole

eligibility, (2) rea sona ble doubt, (3 ) finding D efenda nt “innoce nt,” (4) definition of

“delibera te,” and (5) self-defense. T he post-con viction court concluded, “These

issues have been waived, in that they were not raised on initial appeal or in the

first petition for post-conviction relief.” W e agree, with the exc eption of the jury

instruction on parole elig ibility, whic h was raised and d ecide d on d irect ap peal;

therefore, this issue h as bee n previou sly determ ined.            See State v. Alvin

Seagroves, Nos. 730-73 3 (Tenn. C rim. App., Na shville, Sept. 15, 1976 ).



                 III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant asserts h e suffere d ineffective ass istanc e of co unse l at trial.

Defendant raised the issue of ineffective assistance in his first post-conviction

petition filed in 1981, a fact that would usually preclude the issue from being re-

litigated. See Cone v. State, 927 S.W .2d 579, 581 -82 (Tenn . Crim. App. 19 95).

Howeve r, because Defendant did not receive an evidentiary hearing, we find that

                                            -6-
he did no t receive a “full an d fair hearing” on the issue as required by Tennessee

Code Annotated § 40-30-112(b) before an issue may be considered previo usly

determined. See Hous e v. State, 911 S.W.2d 705 (Tenn. 1995 ) (“[A] ‘full a nd fair

hearing’ sufficient to support a findin g of previous de termination oc curs if a

petitioner is given the opportunity to present proof and argument on the petition

for post-c onvictio n relief.”) . Ther efore, w e will not consider the claim s previo usly

determined.



       To be entitled to post-conviction relief on the basis of ineffective assistance

of counsel, Defendant must show that his counsel’s representation was

“deficient” and tha t “the deficien t perform ance p rejudiced the defen se.”

Strickland v. Washington, 466 U.S . 668, 687 (1984). U nder the first prong,

coun sel’s perform ance is n ot deficient when “the advice given, or the services

rendered by the attorney, are within the range of competence demanded of

attorneys in criminal cases .” Baxter v. Rose, 523 S.W.2d 930, 936 (Ten n. 1975).

The second prong requires Defen dant to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Strickland, 466 U .S. at 694 . “A rea sona ble pro bability is a probability sufficient

to underm ine confidence in the outcom e.” Id.



       With respe ct to ratio naliza tion of a ttorney cond uct in an ineffective

assistance of counsel case, the Supreme Court instructed,

       Judicial scrutiny of coun sel’s pe rform ance mus t be hig hly
       defere ntial. It is all too tempting for a defendant to second-guess
       coun sel’s assistance after conviction or ad verse se ntence . . . . A
       fair assessment of attorney perform ance requ ires 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.

                                           -7-
Id. at 688.



       In this case, Defendant complains of ineffective assistance by his trial

counsel for failure to confer, advise, and investigate. In its order d enying re lief,

the post-conviction co urt concluded that Defe ndant fa iled to carry h is burden to

prove ineffective assistance by a prepon deranc e of the ev idence . We find that

the evidence does not prep ondera te again st this fin ding. C ontrar y to De fenda nt’s

testimony at the post-conviction hearing, his trial counsel testified that they met

with him on several occasions in preparation for trial. Furthermore, Defendant

has not produced any evidence tending to show how he was prejudiced by the

allegedly d eficient rep resenta tion at trial. Th is issue lac ks me rit.



       Because Defendant’s claims of improper jury instructions have been

waived or previously determin ed, and because we find the evidence does not

prepon derate against th e trial court’s find ings that a llegations of Brady violations

and ineffective assistance of counsel lack merit, we affirm the trial court’s denial

of post-co nviction relief.




                                    ____________________________________
                                    DAVID H. WELLES, JUDGE




                                           -8-
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JERRY L. SMITH, JUDGE




                              -9-
