        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 26, 2008

               MICHAEL S. POWELL v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Hamilton County
                            No. 247239 Don W. Poole, Judge




               No. E2007-01586-CCA-R3-PC        - Filed December 22, 2008



A Hamilton County jury convicted the Petitioner, Michael S. Powell, of count one, first degree
felony murder, with the underlying felony being aggravated child abuse, and of count two,
aggravated child abuse. The trial court sentenced him to concurrent sentences of life in prison
for the murder conviction and twenty years for the aggravated child abuse conviction. The
Petitioner filed a petition for post-conviction relief claiming that he received the ineffective
assistance of counsel. After a hearing, the post-conviction court dismissed the petition. The
Petitioner appeals that dismissal, contending that his trial counsel was ineffective for failing to
request that a mental evaluation be conducted on the Petitioner. Finding no error, we affirm the
judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J.C. MCLIN , JJ., joined.

Cynthia A. LeCroy-Schemel (at post-conviction hearing), and Jason D. Demastus (on appeal),
Chattanooga, Tennessee, for the Appellant, Michael S. Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Renee W. Turner, Assistant Attorney General; William H. Cox, III, District Attorney General;
Neal Pinkston, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION
                                            I. Facts

       A Hamilton County Grand Jury indicted the Petitioner for one count of first degree
felony murder, with the underlying felony being aggravated child abuse, and a second count of
aggravated child abuse. In our opinion on the Petitioner’s direct appeal, we summarized the
evidence presented at trial as follows:

               On the night of January 8, 1999, the Defendant was home with his
       girlfriend, the victim’s mother, and the victim, three-month-old Trevor Chase
       Holland. The baby was asleep in his carseat; the baby’s mother was also asleep.
       When Trevor began crying, the Defendant removed him from his carseat and took
       him into the bedroom. The Defendant testified at trial about what next occurred:

                       Anyway, he began to scream and I went into the
               bedroom, I tried to suffice him. I tried to give him a bottle, tried
               to comfort him. Nothing worked. He kept screaming. He kept
               screaming. And there was some napkins laying on a cabinet
               that I had in the bedroom and I picked one of them up and I
               wadded it up and that’s when I put it in his mouth, just to try to
               quiet him down, because I was just so frustrated with him for
               the last two nights not having any sleep. And I put the paper in
               his mouth. Never, never intentionally meaning to harm the
               child.

                At that point, the Defendant testified, the baby stopped crying. The
        Defendant then tried to remove the paper, but “couldn’t pull it out because [he]
        had pushed it in too far.” He kept trying to scoop the paper out with his finger,
        he testified, but was unable to remove it. He then tried using the earpiece of a
        pair of sunglasses to remove the wad of paper. Unsuccessful, the Defendant
        called 911.

                Upon reaching the 911 dispatcher, the Defendant stated, “Our little baby
        has got something hung in his throat and he can’t breathe.” When asked what
        the baby had in his throat, the Defendant stated, “I have no idea.” Later in the
        call, the Defendant told the dispatcher “it looks like there’s paper or something
        back in the back of his throat.” The Defendant never told the dispatcher how the
        paper came to be in Trevor’s throat.

                Paramedic Ed Griffits was the first responder on the scene. When he
        arrived the baby was not breathing and had no pulse. The Defendant made no
        effort to explain to Mr. Griffits what was obstructing the baby’s airway. Mr.
        Griffits was unsuccessful in his attempt to intubate the baby, explaining that his
        throat “looked like hamburger meat.” Mr. Griffits transported the baby to the
        hospital, where Dr. Ralph Smith took over Trevor’s care.

               Dr. Smith testified that, by the time the baby arrived in the emergency
        department, he “had been without oxygen for a significant period of time.” Dr.
        Smith examined the baby’s mouth but was unable to see the wad of paper
        because of its location. Dr. Smith intubated the baby but was unable to revive
        him. After pronouncing Trevor dead, Dr. Smith performed a “babygram,” which

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is a full-length x-ray of the baby’s body. In examining the s-ray, Dr. Smith
discovered that Trevor’s left femur (thigh bone) was fractured in multiple places.
There was also a fracture to the left tibia (shinbone) near the ankle. Dr. Smith’s
diagnosis of Trevor’s injuries included a finding of child abuse.

        Dr. Marilyn Gay Murr Doyle performed the autopsy on Trevor. She
described the cause of death as follows: “This three-month-old, white, male
infant died as a result of a foreign body in the esophagus which compressed
against the trachea causing suffocation and asphyxiation.” Dr. Doyle testified
that she removed a wad of paper measuring two and one-quarter inches by one
and one-quarter inches by five-eighths inch from Trevor’s esophagus. She
further testified that a normal esophagus in a child of Trevor’s size was
approximately three-eighths inch by one-eighth inch. The wad of paper was
located in the esophagus at a level below the child’s Adam’s apple, behind his
windpipe. Dr. Doyle testified that the wad of paper was so large that it caused
the esophagus to rip and rupture. She stated that it was impossible for the child
to have gotten the paper that far into his throat by himself, and described the wad
as having been “crammed” into the baby’s esophagus. In her opinion, Trevor’s
death resulted from a homicide.

       Dr. Doyle also testified about the broken femur, explaining that, in her
opinion, the injury was no more than twenty-four hours old.

        Dr. Deloris Rissling, a radiologist, testified that the fractures to Trevor’s
femur and tibia were no more than five day sold, and probably less. She stated
that there was no way the child could have caused these fractures to himself.
She further opined that the fracture to the tibia was “characteristic of child
abuse.”

        Detective Tommy Woods took two recorded statements from the
Defendant, both of which were admitted at trial. In his first statement, taken
several hours after Trevor’s death, the Defendant denied having done anything
injurious to the child, and speculated that the baby might have picked up some
toilet paper that had been scattered by his older brother, and then placed it in his
own mouth. After the autopsy, the Defendant explained in his second taped
statement that he had used a few squares of toilet paper to wipe off the baby’s
gums, and that the paper had accidentally gotten into the baby’s throat.
Detective Woods also testified that the Defendant made another, unrecorded
statement to him, in which the Defendant admitted placing toilet paper in
Trevor’s mouth in order to quiet him.

       Dr. Steven Frank Dutton testified on behalf of the defense. Although he
did not examine Trevor’s body, he examined the autopsy report and the related
photographs and x-rays. He agreed that Trevor died “because he had a paper
napkin that was shoved down his throat,” but stated that his findings were

                                        -3-
          consistent with someone forcing something into the baby’s mouth and then
          trying to remove it. In his opinion, the lacerations to the esophagus could have
          been caused by the earpiece of a pair of sunglasses used in an attempt to retrieve
          the wad of paper. Dr. Dutton further opined that the fracture to Trevor’s femur
          was eleven to fifteen days old. On cross-examination, Dr. Dutton agreed with
          the prosecutor that forcing a napkin into Trevor’s mouth constituted child abuse.

State v. Michael Shane Powell, No. E2001-01544-CCA-R3-CD, 2002 WL 1465922 (Tenn. Crim.
App., at Knoxville, July 9, 2006), perm. app. denied (Tenn. Dec. 9, 2002). This Court affirmed
the Petitioner’s conviction and sentence on appeal. Id. at *1.

        The Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was
ineffective for failing to request a mental evaluation be conducted on the Petitioner. At the
hearing on his petition, the following relevant evidence was presented:1 The Petitioner’s trial
counsel (“Counsel”) testified that he recalled that the Petitioner’s mother contacted him about
this case. He turned it down several times because he had recently left the prosecutor’s office
where he had prosecuted several infant death cases. The Petitioner’s mother implored him to
consider taking the case, and he ultimately agreed. Counsel said he met with the Petitioner’s
mother on three occasions before he met the Petitioner. At his first meeting with the Petitioner,
he explained his history as both a prosecutor and a defense attorney. The Petitioner, who was a
Sheriff’s Deputy at the time, said he understood and agreed to have Counsel represent him.

        Counsel testified that, during the course of representing the Petitioner, he retained an
investigator and also retained the services of a forensic specialist. Counsel felt that a medical
expert was necessary, in part, because the State’s medical examiner, Dr. Murr-Doyle, seemed to
have been personally affected by this case. He felt that Dr. Murr-Doyle was going to do
“everything in her power to convict [the Petitioner].”

       Counsel said he noticed that, as the trial date approached, the Petitioner appeared to be
under “a lot of stress.” At one point, Counsel requested that the Petitioner’s family physician be
allowed to examine the Petitioner while the Petitioner was in jail to see if there needed to be a
change in the Petitioner’s medications. Counsel denied that he said the Petitioner should be on
Xanax.

       Counsel estimated that he met with the Petitioner between fifteen and twenty-five times,
enough, he said, that he “felt [he] had good control of the case.” Counsel said that the Petitioner
had previously worked in a jail, and he therefore seemed to adapt to jail life relatively well. As

1
  The Petitioner raised numerous allegations in his post-conviction petition and much of the testimony at the
 post-conviction hearing explored those allegations. On appeal, the Petitioner asserts only that Counsel was
ineffective for failing to request a mental evaluation of the Petitioner be performed upon the Petitioner. In our
summary of the facts, we provide some background but intentionally limit our facts to those most relevant to the
Petitioner’s appeal.




                                                         -4-
the trial neared, the Petitioner’s stress level increased in a manner Counsel found appropriate
considering the seriousness of the charges against him.

        Counsel testified that he enlisted the aid of Jerry Morris as an investigator in the
Petitioner’s case. Counsel’s copy of Morris’s file showed that Morris did an educational
background, as well as an employment and marriage history, and a medical/mental history of the
Petitioner.

         About the Petitioner’s mental history, Counsel testified that Morris’s report noted that the
Petitioner had been diagnosed as bipolar and had been seeing a psychiatrist and psychologist at
the time of the report. Further, the report noted that the Petitioner had seen Drs. Simpson, Klein,
Holmes and Gibson. Counsel said that, if there were phone numbers in Morris’s file, he would
have contacted the doctors to interview them. He agreed that he did not have documentation
stating when and how he contacted the doctors. Counsel said, however, that he discussed the
issue of whether the Petitioner was bipolar at length with the Petitioner and his mother, and they
took this issue into account when they determined their trial strategy. The fact that the
Petitioner’s medication had been increased was also a matter that they discussed in preparation
for trial. Counsel said that he believed he received medical records from the Petitioner’s doctors
before the State gave him copies as part of discovery. Counsel recalled that he and the Petitioner
discussed that the Petitioner had suffered from meningitis as a teenager, but he did not recall
whether the illness put the Petitioner in a coma.

        Counsel reiterated that the Petitioner seemed “stressed” before trial, but Counsel felt it
was an “appropriate reaction” to the situation. Further, Counsel explained that the Petitioner told
him that he was having a problem with his medications, which led to Counsel’s request to have a
physician see the Petitioner in jail. Counsel said that the Petitioner’s competency and sanity
were not an issue. Counsel and the Petitioner discussed the Petitioner’s mental health at length,
and the Petitioner clearly told him that he did not want to run “some sort of BS psychiatric
defense on the case.” Counsel said the Petitioner admitted that he had been consuming drugs
and alcohol periodically for forty-eight hours before this killing. Further, the Petitioner said that
he put the toilet paper in the baby’s throat and then tried to get it out and could not. He then
used his sunglasses to try to retrieve the paper from the baby’s throat. Counsel recalled that the
Petitioner felt that it was a better trial strategy to tell the jury that what had happened was a
mistake and an accident as opposed to blaming it on being bipolar and not having taken his
medication. Counsel reiterated that he discussed this at length with both the Petitioner and the
Petitioner’s mother.

         On cross-examination, Counsel testified that, during his representation of the Petitioner,
he had asserted an insanity defense in his defense of another client. He said that his office was
“quite familiar with the insanity defense and how to successfully advance it.” Further, Counsel
testified that he asserts the insanity defense when it is appropriate, but both he and the Petitioner
did not feel that it was a legitimate defense in this case. Counsel found the Petitioner “lucid,
clear-thinking, [and] understanding [of] the situation before him,” and opined that “[The
Petitioner] had a full understanding of the law.” Counsel said that he thought the Petitioner was
in the top five percent of all clients that he had ever represented in his understanding of how the

                                                -5-
courts work, the administration of justice, and procedure.

         Mary Ann Green, an assistant district public defender, testified that she had been
practicing law for over twenty-six years. She said that the normal procedure when an assistant
public defender is assigned a case is to complete, or have an investigator complete, an intake
sheet, which includes extensive notes on the person’s mental and psychological history. If a
client had a mental health problem or a prior mental health history of some sort, Green would
have the client sign releases and would request his mental health records. Once the records were
obtained, Green evaluated them in terms of whether the defense needed expert services and
whether a forensic evaluation would be appropriate. With regard to the Petitioner, Green
testified that “red flags would have gone up” when she noticed that the Petitioner had a history
of bipolar disorder and when she saw that he had meningitis as a child, which is a disease that
can leave far-reaching after-effects. Green would also have been concerned if the Petitioner’s
doctor had requested that his medication be increased. Green said that, when she interviewed the
Petitioner, she learned that he had a history of “closed head injuries,” which could result in brain
trauma.

         Green testified that she would have looked for a neuropsychologist to test the Petitioner
so that they could determine exactly what mental issues he had. His closed head injuries and
meningitis could have resulted in his not making “very good decisions.” Further, Green would
have wanted the expert to consider that the Petitioner had been diagnosed as bipolar and that he
was taking medication for this disorder immediately before the incident. Green testified that the
Petitioner had also been seen by a psychiatrist before this killing and that his last treatment
session was the month before this incident. She said that these factors would lead her to seek the
services of a “good neuropsychologist” to interview and test the Petitioner. Green said that she
“wouldn’t care what the [Petitioner] said about not wanting to put his mental health history in
front of the court,” explaining that it was not up to the Petitioner to decide whether she would
obtain an expert’s services because she had an obligation to look at every possible defense. She
testified that any mental health issue might have risen to the level of diminished capacity.

        Green further testified that the Petitioner told her that he had “pretended” to have injuries
in order to be prescribed pain medication since the age of fifteen or sixteen. She classified this
as an “extremely serious” addiction problem. Green said that she may have consulted another
expert, an “addictionologist,” with regard to the Petitioner’s behavior.

        Green opined that Counsel’s decisions for trial were only as good as the information that
they were based upon. If Counsel based his decision on information that was incomplete, then
his decisions may not have been sound.

        Green stated that her office does not destroy files. Further, if the client requests a
document from the file, the document is usually copied and the original is given to the client,
with the copy of the document being retained in the file. Alternatively, when no copy is
retained, a memorandum is drafted stating what documents were taken from the file by the
client, and the memorandum is placed in the file. Green said that this procedure was followed
when Green was in private practice as well. Green stressed the importance of keeping the files

                                                -6-
for future proceedings, such as post-conviction proceedings.

        On cross-examination, Green testified that she never represented the Petitioner in general
sessions court but that someone from her office had. She did not review the Petitioner’s file at
that point, and she had only recently reviewed it in anticipation of this court case. She assumed
that the public defenders representing the Petitioner only gathered documents in anticipation of
the preliminary hearing. They would not, before having the documents, order a mental
evaluation or enlist the aid of experts. Shortly after the preliminary hearing, Counsel was
retained, and her office was no longer involved in the case. Counsel reviewed the public
defender’s file, and Green thought that he should have been aware of the “red flags” after that
review. She admitted that she did not share any of her concerns with Counsel.

         Dr. Robert W. Brown, who the parties stipulated was an expert neuropsychologist,
testified that he interviewed the Petitioner on three separate occasions, each interview lasting the
“better part of the day.” The interviews were extensive, and they included the Petitioner’s
completion of a variety of psychological tests. The doctor also reviewed court transcripts and
records from the clinic where Drs. Homes and Klein treated the Petitioner. Further, Dr. Brown
reviewed records from Dr. Gibson, a neurologist, and Dr. Simpson, a general practitioner. After
meeting the Petitioner, Dr. Brown obtained records from a medical facility in Houston.

        Dr. Brown said that, within minutes of meeting the Petitioner, he observed what he
thought were some “serious neurobehaviorial performance problems.” The doctor said that he
contacted the Petitioner’s post-conviction attorney and told her that the Petitioner was being
treated for bipolar disorder but that the treatment was not satisfactory because the doctor
suspected that he had some serious brain dysfunction. Dr. Brown became concerned and met
with the Petitioner’s mother, who informed him about the Petitioner’s previous head injuries and
bout of meningitis.

        The doctor said that the Petitioner’s post-conviction attorney asked him to evaluate the
Petitioner’s competency to stand trial, his mental condition at the time of the crime, and whether
there was any evidence to support diminished capacity. He then described the tests that he
performed on the Petitioner and testified that, based upon those tests, he was of the opinion that
there was no evidence that the severity of the Petitioner’s mental conditions prevented him from
appreciating the nature or wrongfulness of his actions on the day of the killing. Further, he
found nothing indicating that the severity of the Petitioner’s mental conditions prevented him
from possessing a culpable mental state on the day of the killing. The doctor concluded,
however, that the Petitioner’s “competency to stand trial performance in 1999 was compromised
by his mental condition,” which was not adequately diagnosed or treated at the time. The doctor
thought that, at the time of the post-conviction hearing, the Petitioner possessed only “marginal
capacity” to stand trial, and his testimonial competency was questionable. Finally, Dr. Brown
concluded that the “extent and severity of [the Petitioner’s] multiple mental conditions may be
considered to be mitigating factors in regard to his actions” on the day of the killing.

       Dr. Brown testified that, while he was not present at the Petitioner’s trial in October of
2000, his testing of the Petitioner in 2005 led him to his conclusions. Dr. Brown said that, while

                                                -7-
the Petitioner stated he had the utmost respect for his treating psychiatrist Dr. Reddy, Dr. Reddy
repeatedly noted that she was not satisfied that she provided adequate treatment of all of the
Petitioner’s mental health issues. Dr. Brown said that the Petitioner felt he was competent to
stand trial, but Dr. Brown thought the Petitioner had no “insight into any of his cognitive
problems,” which “raise[d] questions about higher mental functions . . . needed to provide an
adequate defense.”

        Dr. Brown said that, in the time between his first meeting with the Petitioner and the
post-conviction hearing, the Petitioner had become “more agitated, more irritable, and more
reactive to the court scenario and the possibility of testifying” than he was in 2005. The
Petitioner’s TDOC records indicated that doctors were still refining his medication regimen. Dr.
Brown indicated that, although this meant the Petitioner was receiving better treatment at the
time of the post-conviction hearing than that which he received in 2005, the Petitioner still
suffered from “so many problems.”

       Dr. Brown opined that the Petitioner’s neuropsychological problems could not be
accounted for by his two diagnoses: bipolar disorder and obsessive/compulsive disorder.
Therefore, the doctor thought that the Petitioner’s previous bout with meningitis was “an
important piece” of his medical history. It appeared from the Petitioner’s medical history that he
had been in a coma for some period of time as a result of his meningitis.

        Dr. Brown testified that he reviewed Dr. Simpson’s records about treating the Petitioner,
and he found notes that Counsel had contacted Dr. Simpson about whether there was an issue
with the Petitioner standing trial. Dr. Simpson’s notes led Dr. Brown to conclude that the
Petitioner suffered symptoms at the time of trial that were similar to the symptoms the Petitioner
presented when Dr. Brown evaluated him. Dr. Brown questioned whether the Petitioner was
even competent to participate in the post-conviction procedure.

       The doctor described one incident where the Petitioner became extremely irritable when
shown an ink blot card. After the Petitioner calmed down, the doctor inquired about why he had
become so upset. The Petitioner said that he was upset because he did not know what was
expected of him, and he wanted to do the right thing. During that same interview, the doctor
noted that the Petitioner had poor attention and was easily distracted. Dr. Brown opined that he
had his “doubts” that the Petitioner “c[ould] . . . process the information he need[ed] to present a
coherent defense.”

        The doctor noted that the Petitioner offered multiple stories to both the police and
himself about what happened with regard to this incident. Dr. Brown said that his tests revealed
that the Petitioner “confabulates,” meaning that the Petitioner does not arbitrarily come up with
misinformation to mislead people but that his brain does not have an accurate representation of
reality. Further, the Petitioner does not know that he is demonstrating this when he is
completing the tests that have nothing to do with the charges against him. With a person such as
the Petitioner, the doctor questioned the accuracy of information the Petitioner could present in
his defense when testifying. The doctor also noted that the Petitioner was a highly obedient,
dependent, passive child, who later committed an act of violence. He opined that brain damage

                                                -8-
was the only way to “make sense” of this change. Dr. Brown said that the Petitioner’s
competence at the time of the post-conviction hearing was “marginal.” He believed that the
Petitioner was also not competent, or only “minimally competent,” to stand trial in 2000, in light
of the Petitioner’s aggressive response to stressful or conflicting stimuli. The doctor agreed that
there was no support for an insanity defense, although he diagnosed the Petitioner as having a
bipolar disorder with a psychosis.

         On cross-examination, Dr. Brown testified that he examined the Petitioner for three
sessions in 2005 and that the sessions were essentially full day examinations. Dr. Brown
testified that in only five to six percent of cases was a defendant successful in asserting that his
mental illness and/or defect was so severe as to prevent his appreciation of the nature of the
wrongfulness of the actions. The doctor reiterated that, while he did not think that the Petitioner
met the qualifications for the insanity defense, he thought that the Petitioner met only the
“minimal standards of competency” to stand trial.

        Dr. Brown testified that he asked the Petitioner during the examinations if the Petitioner
had ever before been tested by a psychologist. He did not recall whether the Petitioner said that
he had been so tested for his law enforcement job. Dr. Brown noted that such law enforcement
testing was “very limited.”

        On redirect examination, the doctor noted that the criminal negligence statute requires a
deviation from the standard of care of an “ordinary person.” He expressed concern that the
Petitioner was not an ordinary person, because the Petitioner’s brain changed significantly
following a bout with spinal meningitis when he was 14 years old. The Petitioner, the doctor
said, was a person who could act with “very abrupt impulsive behavior, who isn’t adequately
screening his environment, isn’t adequately conceptualizing the potential risk or harm or danger
of the situation that he’s in.” The doctor noted that the Petitioner said that he did not call 9-1-1
immediately after this incident because he had medical training as a law enforcement officer,
which demonstrated to the doctor that he had no recognition of the risk facing the Petitioner as a
result of his actions. Further, at the time of the interview, the Petitioner still did not appreciate
the risk presented by his situation.

        Dr. Brown testified that the Petitioner chose to testify because he had a childlike moral
sense. The Petitioner thought that if he told the truth people would have mercy on him, which is
an “extremely naive position.” The doctor also agreed that, at the time of his interview with the
Petitioner, the Petitioner had been receiving treatment and medication for approximately six
years. The doctor opined, however, that the mental problems and deficiencies displayed by the
Petitioner at the time of the interview would have been the same at his trial in 1997.

       Based upon this evidence, the post-conviction court denied the Petitioner’s petition.

                                           II. Analysis

       On appeal, the Petitioner contends that his trial counsel was ineffective for failing to
request a mental evaluation of the Petitioner and that this failure prejudiced him. The Petitioner

                                                -9-
argues that Counsel noted the Petitioner’s stress before trial and contacted the Petitioner’s
personal physician. This, in combination with the fact that Counsel was aware of the Petitioner’s
“strong mental health issues” leading up to his trial, called for Counsel to seek a mental health
evaluation for his client. The State asserts that the evidence supports the post-conviction court’s
ruling because Counsel was aware of the Petitioner’s mental health issues but did not seek a
mental evaluation based upon his and the Petitioner’s strategic decision that claiming that the
infant’s death was an accident was a better defense than claiming the insanity or diminished
capacity of the Petitioner. Further, the State asserts that the Petitioner presented no evidence
supporting a claim of diminished capacity or an insanity defense at the post-conviction hearing.

       The post-conviction court concluded the following:

       The petitioner claims that counsel was ineffective in not seeking a mental
       evaluation, thereby forcing him to waive viable theories of insanity and
       diminished capacity. Dr. Brown’s testimony, however, does not support the
       claim with respect to insanity. Nor, though it is slightly contradictory, does it
       support the claim with respect to diminished capacity. Although Dr. Brown did
       suggest that the petitioner is, because of his brain dysfunction, not an ordinary
       person and therefore perhaps incapable of criminal negligence, the conviction
       offenses do not require criminal negligence or even knowledge of the injurious
       nature of one’s treatment of a child. They merely require knowledge of one’s
       treatment of a child. The court, however, cannot reasonably question the
       petitioner’s knowledge of his conduct when Dr. Brown does not question the
       petitioner’s sanity, i.e., his knowledge of the wrongfulness of his conduct. It
       therefore finds no clear and convincing evidence that counsel’s failure to seek a
       mental evaluation was prejudicial in either respect.

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction
or sentence is void or voidable because of the abridgment of a constitutional right. T.C.A. § 40-
30-103 (2006). The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). Upon
review, this Court will not re-weigh or re-evaluate 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 v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). A post-conviction court’s factual findings are subject to de novo review by this
Court; however, we just accord these factual findings a presumption of correctness, which can be
overcome only when a preponderance of the evidence is contrary to the post-conviction court’s
factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
conclusions of law are subject to a purely de novo review by this Court, with no presumption of
correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453,

                                               -10-
461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong
test directs a court’s evaluation of a claim for ineffectiveness:

       First, the [petitioner] must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.
       Second, the [petitioner] must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive
       the [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner]
       makes both showings, it cannot be said that the conviction or death sentence
       resulted from a breakdown in the adversary process that renders the result
       unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of
ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below
an objective standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(citing Strickland, 466 U.S. at 688 (1984)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should
judge the attorney’s performance within the context of the case as a whole, taking into account
all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149
(Tenn. Crim. App. 1988). The reviewing court must evaluate the questionable conduct from the
attorney’s perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). In doing so, the reviewing court must be highly deferential and “should indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462. Finally, we note that a defendant in a criminal case is not
entitled to perfect representation, only constitutionally adequate representation. Denton v. State,
945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of
ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States
v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. House, 44 S.W.3d at 515 (citing Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996)). However, deference to matters of strategy and tactical choices applies only if
the choices are informed ones based upon adequate preparation. House, 44 S.W.3d at 515.

        If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “there

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is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d
576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994).

        In the case under submission, the post-conviction court based its denial of the Petitioner’s
claim upon its finding that Counsel’s actions did not prejudice the Petitioner. The evidence does
not preponderate against this finding. Dr. Brown very clearly testified that the Petitioner was not
so mentally impaired as to qualify to assert an insanity defense. He further testified that the
Petitioner was likely only “minimally competent” to stand trial in 2000 based upon his
diminished capacity to testify. We agree with the post-conviction court that this is not sufficient
proof that, had Counsel sought a mental evaluation, the result of the Petitioner’s trial would have
been different. Accordingly, the Petitioner has not met his burden of proof and is not entitled to
relief on this issue.

                                         III. Conclusion

       Based on the foregoing reasoning and authorities, we affirm the judgment of the post-
conviction court.
                                                ______________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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