          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY SESS ION, 1998
                                                        FILED
                                                        May 5, 1998
BILLY ALDRIDGE,                     )   C.C.A. NO. 02C01-9701-CC-00021
                                    )                Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
            Appe llant,             )
                                    )   LAKE COUNTY
V.                                  )
                                    )
                                    )   HON. JOE G. RILEY, JR., JUDGE
STATE OF TENNESSEE,                 )
                                    )
            Appellee.               )   (POST -CON VICTIO N)



FOR THE APPELLANT:                      FOR THE APPELLEE:

WILLIAM K. RANDOLPH                     JOHN KNOX WALKUP
120 N. Mill Street, Suite 303           Attorney General & Reporter
P.O. Box 611
Dyersburg, TN 38025-0611                KENNETH W. RUCKER
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

G. STE PHE N DAV IS                     C. PHILLIP BIVENS
District Public Defender                District Attorn ey Ge neral

CLARENCE U. COCHRAN, JR.                KAREN WINCHESTER
Assistant Public Defender               Assistant District Attorney General
P.O. Box 742                            P.O. Drawer E
Dyersburg, TN 38025                     Dyersburg, TN 38025




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, Billy Aldridge, appeals from the order denying his petition for

post-conviction relief. Petitioner was convicted of aggravated assault following a jury

trial in the Lake County Circuit Court. This court affirmed on direct appea l. State v.

Billy Aldridge, No. 02C01-9509-CC-00279, Lake County (Tenn. Crim. App., at

Jackson, April 17, 1996 ). Petitio ner su bseq uently filed a petition for post-conviction

relief. This petition was subsequently denied following a hearing by the trial court.

In this petition, Petitioner argues he was denied the effective assistance of counsel

in the jury se lection pro cess. W e affirm the judgm ent of the tria l court.



       “In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his petition by a preponde rance of the evide nce.” McBee v. State,

655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of

the trial cou rt in hea rings “a re con clusive on appeal unless the evidence

preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983 ). In reviewing the Pe titioner’s Sixth Amen dment claim of ineffective

assistance of counsel, this court must determine whether the advice given or

services rendered by the attorney are with in the range of competence demanded of

attorneys in crimina l cases. Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75).



       This court sho uld not second-guess tria l coun sel’s tac tical an d strate gic

choices unless those choices were un informe d beca use of ina dequa te preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel should not be deemed to

have been ineffective merely because a different procedure or strategy might have

produced a different re sult. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

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App. 1980). To prevail on a claim of ineffective assistance of counsel, a petitioner

“must show th at counsel’s representation fell below an objective standard of

reasonableness” and that this perform ance p rejudiced the defen se. There must be

a reasonab le probability that but for coun sel’s error the result of the p roceeding

would have be en differen t. Strickland v. Washington, 466 U.S. 66 8, 687-88, 692,

694, 104 S.Ct. 20 52, 2064, 20 67-68, 80 L.E d.2d 674 (1 984); Best v. State, 708

S.W .2d 421, 422 (Tenn. Crim . App. 1985 ).



       Specifically, Petitioner contends that he received ineffective assistance of

counsel in the jury selection process due to trial counsel’s failure to use the

peremp tory challenge on jurors who were prison emplo yees. Trial counsel testified

that he was appointed to represent Petitioner in the case, in which the criminal act

was alleged to have o ccurred in the State ’s correctio nal facility in La ke Cou nty.

During voir dire, counsel wa s aware that several of the pote ntial jurors were

employees of the Tennessee Department of Correction. Counsel recalle d ask ing if

any of the jurors or the jurors’ relatives worked at the prison or in law en forcem ent.

Then, counsel asked all of the jurors if they had any general knowledge regarding

the facts of the case and w hethe r the fac t that the y or the ir relatives were employees

of the prison would make a difference in their ability to decide the case on the facts.

Counsel recalled that none of the potential jurors responded in the affirmative.

Furthermore, coun sel voir d ired on the im portan ce of th e Petitio ner’s rig ht to a fa ir

trial and wh ether the jurors had any dou bts in their mind regarding whether they

could give Petitioner a fair trial and de cide it on the basis of th e eviden ce.



       Counsel stated that he was well aware that many people from the jury pool

work at the pris on in his county, but that he had to acce pt what their answ ers were

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on voir dire as to whether they could be fair and just and whether they knew anything

about the facts th at would prejudice them. Specifically, counsel knew of two (2) of

the twelve (12) jurors who decided Petitioner’s case who actually worked for the

Tennessee Department of Correction. After voir dire, counsel exercised five (5)

peremp tory challeng es. Cou nsel then asked Petitione r if this jury w as ac cepta ble

to him, and Petitioner stated that he had no objection to the final selection.

Ultimately, counsel stated that he was satisfied that the jury chosen was the best he

could ch oose fro m the p otential jury p ool.



       The trial cou rt, in a memorandum opinion and order denying post-conviction

relief, found that Pe titioner received the effective assistance of counsel and denied

Petitione r relief. Spec ifically, the trial cou rt found tha t:

       Counsel was aware of all persons wh o served on the jury that were
       employed at the prison as well as the family connections. No person
       remained on the jury who had any kind of direct knowledge concerning
       this incident. Coun sel ma de strate gical and tactical cho ices with regard
       to the jury selection. Petitione r approved the 12 jurors before the last
       round of peremptory challenges. Petitioner has shown no prejudice as
       a result of the jurors who actually decided the ca se. Th is issue is
       without m erit.

In addition to the trial court’s opinion denying post-conviction relief, Petitioner raised

a similar issue on direct appeal. A panel of this court found that upon review of the

entire record in th is case w ith regard to the claim of juror bias , the claim was not

suppo rted as the Petitioner fa iled to esta blish any b ias.



       In the context of ineffective as sistance of cou nsel, Petitioner has failed to

prove by a preponderance of the evidence that his trial counsel’s decisions during

voir dire were uninformed. Counsel was aware of the potential jurors’ employment

with the Tennessee Department of Correction, and he used tactical and strategic



                                               -4-
questioning in order to determine whether any bias existed against Petition er. Th is

issue is w ithout me rit.



       We affirm the ju dgme nt of the trial co urt.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
JOHN H. PEAY, Judge




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