         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 4, 2001

                  ANTWONE TERRY v. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Lake County
                          No. 99-CR-7719     R. Lee Moore, Judge



                     No. W2001-00177-CCA-R3-CD - Filed April 10, 2002


The petitioner, Antwone Terry, appeals the denial of his petition for post-conviction relief. In this
appeal, the petitioner contends (1) that he did not receive the effective assistance of counsel and (2)
that the state engaged in prosecutorial misconduct. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

Timothy C. Naifeh, Tiptonville, Tennessee, for the appellant, Antwone Terry.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and
C. Phillip Bivens, District Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

        On July 23, 1997, the victim, Tommy Crawford, who was working as a corrections officer
in the Academic School at the Northwest Correction Center (NWCC), noticed that the petitioner was
smoking a cigarette during a class break. Because smoking was not permitted inside the building,
Crawford directed the petitioner to extinguish his cigarette. When the petitioner failed to comply,
Crawford repeated his directive. The petitioner responded by grabbing Crawford and knocking him
to the ground. Crawford sustained a broken hip which required surgery.

         Afterward, the petitioner admitted to corrections officer Lewis Rodriguez that he was
responsible for the assault. Later in the day, Victor Middlebrook, an internal affairs investigator for
the Department of Correction, interviewed both the petitioner and the victim. After being advised
of his rights, the petitioner informed Investigator Middlebrook that he had struck Crawford several
times. He also admitted that when Crawford attempted to retaliate, he pushed him to the ground.
The petitioner assured Investigator Middlebrook that no other inmates were involved in the attack.
       Joel Foster, a corrections officer at NWCC who assisted in the investigation of the incident,
was present when the petitioner confessed to the assault. In addition, Officer Foster prepared a
photographic lineup from which the victim identified the petitioner as his assailant.

        The petitioner, convicted of one count of aggravated assault, received a Range III, persistent
offender sentence of ten years. The sentence was ordered to be served consecutively to concurrent
sentences the petitioner was serving at the time of the assault. This court affirmed the conviction
on direct appeal. See State v. Antwone Terry, No. W1999-00355-CCA-R3-CD (Tenn. Crim. App.,
at Jackson, April 4, 2000). Later, the petitioner filed this petition for post-conviction relief, alleging
among other things that he was denied the effective assistance of counsel and that the state was guilty
of misconduct by failing to disclose favorable evidence.

        At the evidentiary hearing on the petition, the petitioner testified that his trial counsel failed
to interview any witnesses prior to his trial. He claimed that he informed counsel that there were
several witnesses to the incident but conceded that he did not know their names. According to the
petitioner, other inmates whose photographs were included in the lineup might have been potential
witnesses. It was his contention that his trial counsel should have interviewed the inmates to
determine whether any of them possessed favorable information. The petitioner also claimed that
his attorney should have located witnesses who would state that the victim was attacked by other
inmates.

        The petitioner also testified that his trial counsel should have obtained the services of a
handwriting expert. He claimed that the signature on the handwritten statement prepared by
Investigator Middlebrook was forged and asserted that an expert could have confirmed that. The
petitioner also contended that his trial counsel failed to adequately communicate at trial and during
the direct appeal. He claimed that his counsel met with him only once before trial, failed to respond
to his letters, and refused to file requested motions prior to trial or ask certain of his proposed
questions for witnesses.

         Investigator Middlebrook testified that he had prepared the handwritten statement of
admission and that the petitioner signed the document, making and initialing several changes. He
recalled that after the statement was signed, the petitioner read the statement into a tape recorder.
The tape was lost before trial. While Investigator Middlebrook could not recall whether he had
spoken with the petitioner’s counsel prior to trial about the loss of the tape, he remembered that the
loss of the tape was an issue of lengthy discussion during the trial. Investigator Middlebrook also
testified that he took statements from several inmates and recalled that he provided the statements
to the District Attorney General.

        Frank Wilburn, who was incarcerated at NWCC at the time of the assault, testified that he
walked from his classroom into the hallway when he heard the altercation and saw the victim point
his finger and order the petitioner to put his cigarette out. Because his own teacher made him return
to the classroom, Wilburn did not see the assault. He conceded that the petitioner’s counsel did not
question him about the incident.


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         Trial counsel, who represented the petitioner at trial and on appeal, testified that he met with
the petitioner at least once while the petitioner was incarcerated at West Tennessee High. He added
that an investigator for the Public Defender’s office met with the petitioner at the facility on at least
one occasion. Counsel testified that he received several letters from the petitioner and
accommodated those requests that appeared, in his view, to be proper. Recalling that the petitioner
asked him to interview the other inmates that were included in the photographic lineup, trial counsel
confessed uncertainty but stated that he believed an investigator for his office had attempted to locate
those individuals. Trial counsel was not aware of any testimony that would have been beneficial to
the petitioner. He described the theory of defense as one of self-defense rather than one of mistaken
identity.

         Trial counsel conceded that he did not go to the prison to interview Investigator Middlebrook
or Officer Foster with regard to the loss of the tape recording. Although he had asked the District
Attorney General to provide a copy of the tape and Investigator Middlebrook indicated that one
would be provided, trial counsel explained that he was not made aware that the tape had been lost
until trial. Counsel acknowledged that he had not interviewed Investigator Middlebrook’s superiors
to determine whether the tape had, in fact, been lost.

        Counsel explained that a handwriting expert was not necessary because the petitioner had
acknowledged that his signature appeared on the statement. He testified that he learned at a pretrial
hearing on the petitioner’s motion to suppress the statement that Investigator Middlebrook had
written the body of the statement and the petitioner had signed it.

        The trial court found that the petitioner had failed to prove by clear and convincing evidence
that he received the ineffective assistance of counsel. Specifically, the trial court ruled that the
petitioner had failed to demonstrate that his counsel’s performance was deficient. In addition, the
trial court noted that the petitioner had failed to establish that any failure of counsel resulted in
prejudice.

                                                   I
        The petitioner first asserts that he was denied the effective assistance of counsel at trial.
Specifically, he contends that trial counsel was ineffective for failing to adequately investigate,
failing to retain a handwriting expert, and failing to adequately communicate with him. The
petitioner claims that his trial counsel should have interviewed the inmates whose photographs were
included in the lineup because they might have possessed favorable information, argues that a
handwriting expert would have established that his signature on the handwritten statement prepared
by Investigator Middlebrook was a forgery, and asserts that the degree of communication with trial
counsel was minimal.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the

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defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of review
as follows:

                Because a petitioner must establish both prongs of the test, a failure to prove
        either deficiency or prejudice provides a sufficient basis to deny relief on the
        ineffective assistance claim. Indeed, a court need not address the components in any
        particular order or even address both if the defendant makes an insufficient showing
        of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel,
the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial
strategy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of
the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference
to the tactical decisions of counsel, however, applies only if the choices are made after adequate
preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        In a post-conviction proceeding, the petitioner bears the burden of proving his allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact
made by the trial court are conclusive and will not be disturbed unless the evidence contained in the
record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988).
The burden is on the petitioner to show that the evidence preponderated against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

        The proof at the evidentiary hearing suggests that the communication between trial counsel
and the petitioner could have been more extensive. Trial counsel was uncertain whether his office
had requested that an investigator contact potential witnesses and he apparently did little to make up
for any deficiencies in the investigation of the crime. The proof suggests that the defense did not
conduct interviews of potential witnesses. Of equal importance, however, is that the petitioner has
failed to demonstrate how those deficiencies affected the results of the trial. See Strickland, 466
U.S. at 693. No witnesses at the evidentiary hearing shed new light on the circumstances. In Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990), this court placed the burden on the post-
conviction petitioner to produce whatever testimony may have been helpful. No one, expert or
otherwise, was called to corroborate the claim that the signature on his statement was a forgery. In
our view, the evidence does not preponderate against the finding of the trial court that the petitioner
was not prejudiced by any inaction on the part of his trial counsel.

                                                    II
        The petitioner also alleges that the state engaged in prosecutorial misconduct with regard to
the tape recording of his statement to Investigator Middlebrook. The state contends, and the trial
court ruled, that this issue has been previously determined.




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       Post-conviction proceedings may not be employed to raise, relitigate or review questions
decided and disposed of in a direct appeal from a conviction. Morgan v. State, 1 Tenn. Crim. App.
454, 445 S.W.2d 477 (1969). Tennessee Code Annotated section 40-30-206 governs the concept
of previous determination:

               A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call witnesses
       and otherwise present evidence, regardless of whether the petitioner actually
       introduced any evidence.

Tenn. Code Ann. § 40-30-206(h). Here, the petitioner presented the issue of the lost tape as a ground
for relief in both the motion for new trial and on direct appeal. While couched in slightly different
terms in his post-conviction petition, the issue presented earlier is essentially the same. This court
held on direct appeal that the trial court accredited the testimony of Investigator Middlebrook that
the tape recording of the statement had simply been lost. This court ruled that the state’s failure to
produce the tape did not warrant a new trial. In our view, the issue has been previously determined.
See Tenn. Code Ann. § 40-30-206(h).

        Moreover, the petitioner would not be entitled to relief on the merits of his present claim.
While the issue is phrased in terms of prosecutorial misconduct, the petitioner is essentially arguing
that the state failed to produce exculpatory evidence as required under Brady v. Maryland, 373 U.S.
83 (1963). Before this court may find a due process violation under Brady, the following elements
must be established:

       1.      The defendant must have requested the information (unless the evidence is
               obviously exculpatory, in which case the State is bound to release the
               information whether requested or not);
       2.      the State must have suppressed the information;
       3.      the information must have been favorable to the accused; and
       4.      the information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing). While the petitioner’s
trial counsel requested that the state provide him with a copy of the tape, none of the other factors
appear to be present. Thus, the petitioner is not entitled to relief on this issue.

       Accordingly, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE



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