            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                Assigned on Briefs April 25, 2001

                   CYRUS D. WILSON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Davidson County
                              No. 93-A-176   Seth Norman, Judge



                       No. M2000-01237-CCA-R3-PC - Filed May 14, 2001


The Defendant, Cyrus D. Wilson, was convicted by a jury of first degree murder and sentenced to
life in prison. His conviction was affirmed on direct appeal.1 The Defendant subsequently filed for
post-conviction relief alleging that he had received ineffective assistance of counsel at trial and that
his trial was tainted by due process violations. After an evidentiary hearing the post-conviction court
denied relief. The Defendant now appeals as of right. The judgment of the post-conviction court
is affirmed.

      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 NORMA MCGEE OGLE and ALAN
E. GLENN, JJ., joined.

William A. Lane, Murfreesboro, Tennessee, for the appellant, Cyrus D. Wilson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Kymberly L.A. Haas, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                OPINION

         The Defendant contends that he received ineffective assistance of counsel at trial because his
attorney was “undergoing [an] emotional, psychological and/or alcohol drug dependency evaluation
by [a] mental health and treatment center” during the trial; because his attorney did not object to the
trial court’s jury instruction on reasonable doubt; and because his lawyer did not produce certain alibi
witnesses at trial. The Defendant further contends that he is entitled to a new trial because his due
process rights were violated at his first trial. Specifically, he alleges that the jury’s instruction on
reasonable doubt was unconstitutional; that the State wrongfully suppressed certain oral statements


        1
          See State v. Cyrus Deville Wilson, No. 01C01-9408-CR-00266, 1995 WL 676398, at *1 (Tenn. Crim. App.,
Nashville, N ov. 15, 19 95).
he made; that the State wrongfully failed to disclose certain witnesses; and that the State wrongfully
characterized proof in support of its case-in-chief as rebuttal proof. The post-conviction court denied
relief on all of the Defendant’s grounds finding that he failed to carry his burden of proof.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. Tenn. Code Ann. § 40-30-
210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon, 18 S.W.3d at 156; Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against those findings. Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79.

        We will first address the Defendant’s allegations of due process violations. With the
exception of the reasonable doubt jury instruction, each of these contentions was raised in the direct
appeal of this matter. See State v. Cyrus Deville Wilson, No. 01C01-9408-CR-00266, 1995 WL
676398, at *1 (Tenn. Crim. App., Nashville, Nov. 15, 1995). Accordingly, these issues have been
previously determined and will not now be revisited by this Court. See Tenn. Code Ann. § 40-30-
206(h); see also Kendricks v. State, 13 S.W.3d 401, 404 (Tenn. Crim. App. 1999). With respect to
the issue regarding the reasonable doubt instruction, this issue could have been raised on direct
appeal.2 Accordingly, it is now deemed waived. See Tenn. Code Ann. § 40-30-206(g).3 Moreover,
the record does not contain the instruction complained of, and the Defendant offers us neither
argument nor authority in support of this contention. “Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this court.”
Tenn. Ct. Crim. App. R. 10(b).

         We turn now to the Defendant’s allegations that he received ineffective assistance of counsel
at trial. Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a 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). This
right to counsel includes the right to effective counsel. See Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936; Strickland v. Washington, 466 U.S. 668, 686 (1984).

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.

         2
           Contrary to the requirement of our Post-Conviction Act, the Defendant’s petition does not contain allegations
of fact explaining why this ground for relief was no t presented in his direct app eal. See Tenn. Code Ann. § 40-30-204 (e).

         3
           The Defendant makes no argument that this issue is exempt from the waiver rule because it is based on a new
constitutional right requiring retroactive application or that his failure to present the issue is the result of unconstitutional
state action. See Tenn. Code Ann. § 40-30-206 (g)(1), (2).

                                                              -2-
1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the
burden of showing that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the
defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns, 6
S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had
reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.

        With respect to the Defendant’s contention that his lawyer was undergoing some form of
mental health evaluation at the time of his trial, the Defendant offered no proof in support of this
allegation at his hearing. The Defendant’s trial lawyer testified that he underwent an evaluation after
the Defendant’s trial and that there were no findings or treatment as a result. The post-conviction
court made no error, therefore, in finding that the Defendant failed to carry his burden of proof with
respect to this allegation, and this issue is without merit.

        As to the Defendant’s contention regarding his lawyer’s failure to object to the reasonable
doubt instruction, the post-conviction court found that the Defendant presented “no proof” on this
issue. Trial counsel testified that he did not recall the instruction that was given to the jury and did
not remember the Defendant requesting him to object to it. The Defendant testified that he did not
become aware of this issue until after trial. As we have previously noted, the record before us does
not contain the challenged instruction. We agree with the post-conviction court that the Defendant
has failed to carry his burden of proof on this issue, and it is therefore without merit.

        The Defendant also contends that his trial lawyer was ineffective because he did not produce
certain alibi witnesses at trial. In support of his contentions the Defendant produced two alibi
witnesses at his post-conviction hearing. Dawone Matthews testified that he and the Defendant were
both on a basketball court when he heard two gunshots.4 Matthews ran into the Defendant’s
mother’s house; the Defendant, he testified, ran in “right behind” him. The only person he told about
this was his girlfriend, one of the Defendant’s sisters.




       4
           The victim in this case was killed by a gunshot wound to his head.

                                                         -3-
       Brandi Chriswell, a friend of the Defendant’s two sisters, also testified that she saw the
Defendant on the basketball court at the time the shots were fired. She did not relate this information
to anyone, however.

        Valerie Wilson Ehinlaiye, the Defendant’s mother, testified on behalf of the State that
Matthews ran into her house first, and the Defendant did not come in until five or ten minutes after
the shots were fired. The Defendant came in not with Matthews, she testified, but some minutes
later, with the Defendant’s girlfriend.

        The Defendant’s trial counsel testified that the Defendant gave him several nicknames of
alleged alibi witnesses but no full names or addresses. He testified that he “canvassed the area where
they were supposed to be located” four times. He “talked to many different people in the
neighborhood” trying to locate the witnesses. He testified that he “spent many hours . . . trying to
find them,” but was unsuccessful. He stated that he had not previously heard the names “Dawone
Matthews” or “Brandi Chriswell.”

        The Defendant testified that he gave his lawyer the nicknames of several alibi witnesses and
told him where he could find them. He explained that he could not give his lawyer the witnesses’
full names because he did not know them; nor could he give his lawyer the witnesses’s phone
numbers or addresses. However, he contended that “these are the names that they go by every day,
so if [his lawyer] were to go to the neighborhood and inquire about them, [he was] sure that those
people would have been easily found.”

        The post-conviction court found that it “[could] not conclude that counsel was ineffective,
because he could not locate a witness, with only a vague reference as to the location or name of the
individual.” The court further found that Matthews’ testimony was subject to “serious
discrepancies” and concluded that the Defendant had failed to prove by clear and convincing
evidence that, had his lawyer called Matthews and Chriswell, there was a reasonable probability that
the jury would have had a reasonable doubt regarding the Defendant’s guilt. See Strickland, 466
U.S. at 695. Accordingly, the post-conviction court denied relief.

        The evidence does not preponderate against the trial court’s findings. The Defendant failed
to prove by clear and convincing evidence that his lawyer’s performance fell below the required
standard. Moreover, even if his lawyer’s failure to find the alleged alibi witnesses was deficient, we
can neither reevaluate the credibility of the witnesses’ testimony nor reweigh the evidence on behalf
of the Defendant. Accordingly, because the Defendant failed to prove his allegations by clear and
convincing evidence, we affirm the judgment of the post-conviction court.



                                               ___________________________________
                                               DAVID H. WELLES, JUDGE



                                                 -4-
