         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 16, 2001

                    JUSTIN C. MARR v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 98-A-290     Walter C. Kurtz, Judge



                      No. M2000-01412-CCA-R3-PC - Filed July 26, 2001


The petitioner appeals the post-conviction court’s denial of his petition. He claims that he received
ineffective assistance of counsel and his plea of guilty was involuntarily entered. After review, we
affirm the judgment of the post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

C. LeAnn Smith (on appeal), and Lionel Barrett (at trial), Nashville, Tennessee, for the appellant,
Justin C. Marr.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L.A. Haas, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

        The petitioner, Justin C. Marr, appeals from the trial court’s denial of his post-conviction
relief petition. On October 27, 1997, the petitioner was arrested and charged with especially
aggravated robbery and pled guilty as charged on February 8, 1999. The petitioner received a
sentence of sixteen years in the Department of Correction as a Range I offender. On July 27, 1999,
the petitioner filed a pro se petition for post-conviction relief. Counsel was appointed, and an
amended petition was filed. A post-conviction hearing was held on May 5, 2000, and the trial court
entered an order denying the petition for post-conviction relief on May 18, 2000. This appeal timely
followed.

         Specifically, the petitioner asserts the following grounds as ineffective assistance of counsel:
(a) Failing to attempt to change venue; (b) failing to file a motion to suppress petitioner’s statement;
and (c) not properly interviewing potential witnesses and preparing for trial. In addition, the
petitioner contends that as a result of trial counsel’s lack of preparation for trial, the petitioner felt
he did not have a choice between a fair trial and entering a plea of guilty, and thus his guilty plea
was not voluntarily entered.

                                              ANALYSIS

                                         Standard of Review

        Post-conviction petitioners bear the burden of proving their allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords the
trial court’s findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).

        The Sixth Amendment to the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective assistance
of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). When a defendant claims
constitutionally ineffective assistance of counsel, the standard applied by the courts of Tennessee is
“whether the advice given or the service rendered by the attorney is within the range of competence
demanded by attorneys in criminal cases.” Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim.
App. 1980).

        In Strickland v. Washington, the United States Supreme Court outlined the requirements
necessary to demonstrate a violation of the Sixth Amendment right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms and must demonstrate that counsel made errors so serious that he was not
functioning as “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors
were so serious as to deprive the petitioner of a fair trial, calling into question the reliability of the
outcome. Id.; Henley, 960 S.W.2d at 579.

        “When addressing an attorney’s performance it is not our function to ‘second guess’ tactical
and strategic choices pertaining to defense matters or to measure a defense attorney’s representation
by ‘20-20 hindsight.’” Henley, 960 S.W.2d at 579 (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of
hindsight . . . [and] evaluate the conduct from the perspective at the time.” Strickland, 466 U.S. at
689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic failed or hurt the defense, does
not, standing alone, establish unreasonable representation.” Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only
if the choices are informed ones based upon adequate preparation.” Id.



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       To establish prejudice, a party claiming ineffective assistance of counsel must show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id.; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” Id.

        In reviewing a claim of ineffective assistance of counsel, an appellate court need not address
both prongs of Strickland if it determines that the petitioner has failed to carry his burden with
respect to either prong. Henley, 960 S.W.2d at 580. When the claim is predicated upon counsel’s
failure to present potential witnesses, their testimony should be offered at the post-conviction
hearing. In this manner the court can consider (1) whether a material witness existed and could have
been discovered but for counsel’s neglect, or a known witness was not interviewed by counsel; and
(2) whether the failure to discover or interview a witness prejudiced the petitioner or the failure to
call certain witnesses denied critical evidence to the prejudice of the petitioner. See Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

                                Post-Conviction Court’s Findings

       At the conclusion of the post-conviction hearing, the post-conviction court made the
following findings regarding the petitioner’s claim of ineffective assistance of counsel and
involuntary plea:
       Let me – I suppose the allegation of involuntary plea and ineffective assistance of
       counsel are interwoven. I don’t know that they can be separated since Mr. Marr’s
       claim of ineffective assistance of counsel is what he contends makes his plea
       involuntary because he felt, I guess, he had no choice and that he felt his lawyer, he
       says, wasn’t ready for trial and he was forced into this last-minute decision.

       Well, first of all, the colloquy between the judge and Mr. Marr belies that contention
       as well as the plea petition. I also think that Mr. Barrett was as well acquainted with
       this case as could be. He talked to Mr. Marr about it. He was cognizant of the
       statements by Mr. Marr to the nonpolice witnesses as well as the statement by Mr.
       Marr to the police.

       Let me pause there about the statement to the police. It’s a little hard for me to
       resolve this issue on ineffective assistance perhaps because of the sort of lack of
       information here. Mr. Marr says that he invoked his right to counsel, and this police
       record attached to his petition indicates that. Then that same record indicates that he
       initiated a further conversation with the police which under the case of Edwards
       versus Arizona and its progeny would have made the statements voluntary.

       Ms. Smith said, well, of course, the police are going to say that, and I don’t have any
       live witnesses here. But then going back to whether Mr. Barrett was somehow
       ineffective, Mr. Barrett was relying on his client’s statement to him, which I accredit,



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that he made a voluntary plea – or involuntary statement to the police and that there
was no coercion involved.

So I don’t think there was anything here that would cause Mr. Barrett to move to –
that would be beyond the standard of competent counsel by not moving to suppress,
but let’s take it a step further.

Even assuming that he should have done that, I don’t think there could be – you
couldn’t win – the petitioner could not carry the burden on the prejudice prong
because the statement would be available to impeach; but more importantly, there
were like statements made to civilian witnesses that were ready to testify. So I don’t
see how it could have any impact on the outcome of this proceeding.

But then back to the issues that Mr. Marr suggested, that Mr. Barrett was sort of
unready to pursue, first of all, self defense, again I credit Mr. Barrett’s testimony that
Mr. Marr had not indicated any facts that would support a defense of self defense.
And what I know of the record of this case, it’s very, very, improbable that any
defense of self defense could even be pursued, no less be successful.

The other thing is voluntary intoxication. Mr. Barrett spoke to that, that he was
aware of Mr. Marr’s state of intoxication. And while he was intoxicated, it was his
opinion it wasn’t to the level that would provide any help to him in this case. The
mere fact that he had a good memory of it sufficient to tell people about it would
certainly support that.

The thing about interviewing witnesses, the police officer, there’s been no evidence
here presented to indicate what sort of helpful evidence might have been found. And
that, of course, there are several decisions by the court of criminal appeals in a post
conviction case when we’re talking about the failure to call a witness or pursue a line
of investigation. There really has to be a showing that there would be something
helpful to be found.

Then the thing about pretrial publicity. There is no proof in the record of these
newspaper articles. And, gosh, I don’t recall anything about this case that made it a
visible case. If a motion to change venue had been filed, it would have been
frivolous on the record before me and everything I know about this case.

So I don’t think that – and I find that the petitioner has not carried his burden of clear
and convincing evidence by clear and convincing evidence that there was ineffective
assistance of counsel, and has not carried his burden that his plea was involuntary.
Mr. Barrett’s testimony is that he discussed this for weeks beforehand with the
petitioner. And I have to find that his testimony about this last-minute decision just
is not be credible.


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        As this court is required to do, we accord the post-conviction court’s findings the weight of
a jury verdict, and these findings are conclusive on appeal unless the evidence preponderates against
them. See Henley, 960 S.W.2d at 578-79; Bates, 973 S.W. 2d at 631. The record reveals that trial
counsel was learned in the field of criminal law, discussed the case numerous times with the
petitioner, obtained discovery, knew all viable defenses, recognized the strength of the State’s case,
and discussed a plea bargain with the petitioner two weeks before its entry. After reviewing the
record, we agree that the petitioner has failed to show how the evidence in the record preponderates
against the post-conviction court’s findings.

                                          CONCLUSION

        We conclude that the petitioner failed to prove any deficient performance by his trial counsel.
Additionally, he failed to prove that his plea of guilty was not involuntarily entered. Therefore, we
affirm the post-conviction court’s denial of the petitioner’s petition for post-conviction relief.




                                                       __________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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