         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2001

             JOAN ELIZABETH HALL v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Lincoln County
                           No. S0000008     Charles Lee, Judge



                      No. M2000-02707-CCA-R3-PC - September 7, 2001


The petitioner was originally convicted by a Lincoln County jury of criminal responsibility for first
degree murder and sentenced to life imprisonment. The petitioner's conviction was affirmed on
direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction
court. In this appeal, the petitioner contends her trial counsel provided ineffective assistance of
counsel. After a thorough review of the record, we conclude that the post-conviction court correctly
denied post-conviction relief.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

T. Lance Carter (at hearing and on appeal) and Deborah R. Kidd (at hearing), Fayetteville,
Tennessee, for the appellant, Joan Elizabeth Hall.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
William Michael McCown, District Attorney General; Weakley E. Barnard and Ann L. Filer,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

         On the night before state witness Natalie Romine was to testify at the petitioner’s original
trial, the state produced for defense counsel a 69 page statement of the witness. In this appeal, the
petitioner contends her trial attorneys were ineffective for failing to move for a continuance so they
would have adequate time to analyze the statement’s inconsistencies. We respectfully disagree.
                         INEFFECTIVE ASSISTANCE OF COUNSEL

A. Post-Conviction Hearing Testimony

         At the post-conviction hearing, the petitioner’s trial counsel, Raymond Fraley, testified that
he and co-counsel Richard McGee received the witness’s prior statement the night before her
testimony. Fraley stated McGee spent much of the night reading the statement, and they discussed
it the next morning prior to Romine’s testimony. He further stated it was McGee who actually cross-
examined the witness. Fraley testified they neither asked for a continuance nor a recess to further
review the document. Furthermore, Fraley felt the available time was insufficient to adequately
review the statement, and that inconsistencies could have been exposed if the statement had been
provided earlier.

         McGee testified he read the document in its entirety on the night prior to the witness’s
testimony and used information contained in it to prepare for cross-examination. McGee further
testified he had ample time to read and “dissect” the document. McGee conceded he would have
preferred to have had the statement prior to trial, but asserted he had sufficient time to prepare for
the cross-examination.

B. Post-Conviction Court’s Findings

         The post-conviction court found the representation by trial counsel “far exceed[ed] the
requirements that one would expect under the standards of Baxter v. Rose.” In addition, the post-
conviction court found that even if trial counsel were deficient for failing to request a continuance,
it did not prejudice petitioner. More specifically, the court stated there was no showing that a better-
prepared cross-examination of the witness would have made any difference in the trial’s outcome.

C. Standard of Review

        This court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996). In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The trial
court’s findings of fact are afforded the weight of a jury verdict, and this Court is bound by the trial
court’s findings unless the evidence in the record preponderates against those findings. Henley v.

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State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App.
1997). The burden of establishing that the evidence preponderates otherwise is on petitioner.
Henley, 960 S.W.2d at 579.

D. Analysis

        Richard McGee, who actually performed the cross-examination, testified he had ample time
to read the statement and prepare for the cross-examination. The trial court found counsel’s
performance exceeded the Baxter standard. Questions concerning the weight and value to be given
to the testimony of witnesses are to be resolved by the trial court, not this court. Burns, 6 S.W.3d
at 461. The post-conviction court further found that petitioner had failed to establish a reasonable
probability that the result would have been any different had counsel taken more time to prepare for
the cross-examination.

        The evidence does not preponderate against the findings of the post-conviction court.
Petitioner has not established deficient performance or prejudice. Accordingly, the judgment of the
post-conviction court is affirmed.




                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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