         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs November 8, 2000

                    KEITH J. ALLEN v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                            No. P-14914    W. Fred Axley, Judge



                    No. W1999-01522-CCA-R3-PC - Filed January 23, 2001


The Defendant was convicted of first degree murder and sentenced to life imprisonment. He filed
for post-conviction relief on the grounds of ineffective assistance of counsel. After a hearing, the
trial court denied relief. In this appeal as of right, the Defendant contends that the trial court erred.
We affirm the judgment of the trial court.

     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 THOMAS T. WOODALL and JAMES
CURWOOD WITT, JR., JJ., joined.

Mark A. Mesler, Memphis, Tennessee, for the appellant, Keith J. Allen.

Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Rosemary S. Andrews, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The Defendant, Keith Allen, was indicted for first degree murder, and the State sought the
death penalty. After a jury trial, the Defendant was convicted of murder in the perpetration of a
felony (robbery) and sentenced to life imprisonment. The Defendant’s conviction was affirmed on
direct appeal. See State v. Keith J. Allen, No. 02-C-01-9307-CR-00166, 1994 WL 456345, at *1
(Tenn. Crim. App., Jackson, Aug. 24, 1994). On May 24, 1995, the Defendant filed for post-
conviction relief, alleging that he had been denied the effective assistance of counsel at trial. After
a hearing, the trial court denied relief. The Defendant now appeals, alleging that the trial court erred.
Upon our review of the record and relevant legal authority, we affirm the trial court’s judgment.
        During the evidentiary hearing on the Defendant’s petition, the Defendant testified that his
two trial lawyers’ defense strategy was “what got [him] convicted.” He stated that his lawyers
               were supposed to have came [sic] out with the fact that [the victim]
               was criminally trespassing in [his] house, and [he] asked [the victim]
               to leave. [The victim] assaulted [him] in [his] house and [the victim]
               recklessly endangered [the Defendant’s] life in [his] house before [he]
               got the apparatus and took it against [the victim]. That was the line
               of defense [he] should [have] had.

         The Defendant killed the fifteen year old victim by twenty-eight blows with a machete. See
id. One of the Defendant’s trial lawyers testified at the post-conviction hearing that the victim’s
hands had been nearly severed at the wrist as he tried to protect himself; the Defendant, according
to this lawyer, “had maybe one superficial wound which he could have inflicted on himself.” The
Defendant wanted his attorneys to argue self-defense. Both lawyers testified that they did not think
this was a viable defense. They made the tactical decision to emphasize instead the fact that the
Defendant had ingested a significant quantity of crack cocaine prior to killing the victim. According
to one of the lawyers’ testimony, they decided to employ this strategy “because . . . intoxication can
mitigate a first-degree murder to a second degree. And that’s the best we could hope for.” The
Defendant also asserts that his trial lawyers failed to adequately investigate his case and that they
repeatedly urged him to plead guilty.

         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 v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 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 v. Washington, 466 U.S. 668, 687 (1984); Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). 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. Strickland,
466 U.S. at 695. This reasonable probability must be “sufficient to undermine confidence in the
outcome.” Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       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. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). Counsel’s alleged errors should be judged at the time they were made in light of all facts and
circumstances. Strickland, 466 U.S. at 690; see Cooper 849 S.W.2d at 746.

       If afforded a post-conviction evidentiary hearing by the trial court, a defendant must do more
than merely present evidence tending to show incompetent representation and prejudice; he or she
must prove factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).
When an evidentiary hearing is held, findings of fact made by that court are conclusive and binding


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on this Court unless the evidence preponderates against them. Cooper, 849 S.W.2d at 746 (citing
Butler, 789 S.W.2d at 899).

        After the trial court heard testimony from the Defendant and from each of his two trial
attorneys, it issued a comprehensive order denying relief. Upon a thorough review of the allegations,
proof, and applicable authority, the trial court concluded that “counsel rendered assistance to
Petitioner within the range of competence expected of an attorney in a criminal case, and . . .
counsel’s [sic] performance was not so deficient as to prejudice the defense of a fair and reliable trial
as required by Strickland v. Washington, 466 U.S. 668 (1984).”

         Upon our review of the record in this case, we agree with the trial court’s findings of fact and
conclusions of law. The testimony of the Defendant’s two trial lawyers makes clear that they
adequately investigated the Defendant’s case and prepared for trial; they utilized sound legal
judgment in deciding which trial strategy to follow; and they succeeded in their primary goal of
avoiding a death sentence. The Defendant’s testimony established only that he wanted his lawyers
to rely on a defense that they determined to be unwise. Even if we accept the Defendant’s contention
that his lawyers were deficient in their choice of legal strategy, the Defendant has clearly failed to
show a reasonable probability that the jury would have had reasonable doubt regarding his guilt had
his lawyers employed his preferred tactics.

       The Defendant having failed to carry his burden of proof, we find his contentions on appeal
to be without merit. The judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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