        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        AUGUST SESSION, 1998                  FILED
                                                       December 10, 1998
DAVID CLIFF,                 )   C.C.A. NO. 02C01-9711-CC-00450
                             )                         Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
      Appe llant,            )
                             )
                             )   DYER COUNTY
VS.                          )
                             )   HON. JOE G. RILEY
STATE OF TENNESSEE,          )   JUDGE
                             )
      Appellee.              )   (Post-Co nviction Re lief)




FOR THE APPELLANT:               FOR THE APPELLEE:

WILLIAM K. RANDOLPH              JOHN KNOX WALKUP
120 N. Mill St., Suite 303       Attorney General and Reporter
P. O. Box 611
Dyersburg, TN 38025-0611         MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 PHILLIP BIVENS
                                 District Attorney General
                                 P. O. Draw er E
                                 Dyersburg, TN 38025



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION



       This matter represents an appeal by Appellant, David Cliff from the Dyer

Coun ty Circuit Court’s dismissal of his pro se petition for post-conviction relief.

Appellant is currently serving a fourteen (14) year sentence for a conviction of

aggravated assault. On appeal, Appellant raises the following issue for review:

whether the trial court erred in denying Appellant’s pro se motion for a new trial

base d upo n the c laim o f ineffec tive ass istanc e of co unse l.



       After review of the reco rd, we affirm the decis ion of the tria l court.



I. Procedural History

       In Decem ber 1994, A ppellant was c onvicted of agg ravated assa ult by a

Dyer County jury, and the trial court sentence d him to fourtee n (14) years.

Appellant was represented by counsel at arraignment, at trial and at the

sentencing hearing. Although Appellant was represented by counsel at the

hearing on the motio n for a n ew trial, he also filed a pro se motio n for a n ew trial.

In April 1995, the Dyer County Circuit Court conducted a hearing on the

appe llant’s pro se motion for a new trial in which the app ellant alleged ineffective

assistance of counsel as one of the issues. The transc ript of A ppella nt’s motion

for new tria l indicat es tha t his decision to represent himself on the pro se motion

for new trial was en tered afte r an exten sive exam ination by th e trial court.

Subseq uently, the trial court found that he knowingly and volunta rily waive d his

right to c ouns el.




                                            -2-
       The trial court overruled the appella nt’s motion for a new trial after

considering each claim raised in his motion. Respecting the claims regarding

ineffective assistan ce of cou nsel, the trial c ourt foun d that Ap pellant failed to

prove that counsel’s performance was not in accordance with the range of

compe tence deman ded of attorneys who practice c riminal law. The trial court

further determined that Appellant failed to demonstrate any prejudice as a resu lt

of any alleged deficient performance.



       On direct appeal, this Court affirmed Appellant’s conviction. However, the

issue of ineffective assistance of counsel was pretermitted so that the Appellant

could raise it later in a petition for p ost-con viction relief. The pretermission of the

ineffective assistance of counsel claim was based upon the absence of the

transcript of App ellant’s pro se motion for a new trial. State v. David C liff, supra

at *4. W e quote from the unpub lished op inion of this C ourt:



               This Court cannot determine whether the trial court conducted
       an evidentiary hearing or summarily dismissed the pro se motion.
       The record is silent. There is an order contained in the record which
       simp ly states that the motion for a new trial was found to be “without
       merit.” The record does not contain a verbatim transcript or
       statement of the evidence of the hearin g on th e mo tion for n ew trial.
       As a general rule, this Court would conclusively presume that the
       judgment of the trial court was correct. Howe ver, given the history
       of this case, this Court will pretermit this issue so that the appellant
       can raise it in a post-co nviction he aring.

State v. David C liff, C.C.A. No. 02-C-01-9509-CC-00262,1996 WL 551760 at *4,

Dyer Cou nty (Tenn. C rim. App. filed Sep tember 30 , 1996, at Jacks on).




                                           -3-
       Permission to appeal to the Supreme Court was denied on March 10,

1997. Subsequently, Appellant filed the present petition for post-conviction relief.

The post-con viction cou rt determ ined that Appellant raised the issue of ineffective

assistance of counsel at the motion for new trial and the petition failed to raise

any new grounds for post-conviction relief. The post-conviction court also ruled

that Appella nt’s petition d id not com ply with the re quirem ents of Tenn. Code Ann.

§ 40-30-2 17 whic h allows th e appe llant to file a m otion to reo pen the first post-

conviction petition in specific situations. Therefore, the post-conviction court

dismissed the petition without a hearing.




       Appellant is again before this Co urt, cha llengin g the tria l court’s dismissal

of his pro se petition for post-conviction relief where he raised the issue of

ineffective assistan ce of cou nsel. State v. D avid Cliff, supra at *4. While the

transcript of the he aring o n App ellant’s motio n for a n ew trial w as inclu ded fo r this

Cou rt’s review in this appeal, the record remained incomplete because the

transcript of Appellant’s jury trial was absent from this Court’s technical record.



       As a general rule, in the absence of a complete record of what transpired

in the trial cour t, this Cour t must p resume tha t the trial court’s rulings were

supported by sufficien t evidence . State v. Oody, 823 S.W.2d 554, 559 (Tenn.

Crim. App. 1991) (citing Verm ilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim.

App. 1979)). However, the courts may take judicial notice of the court re cords in

an earlier proc eeding of the sam e case . Delbridge v. State of Tennessee, 742

S.W.2d 266, 26 7 (Ten n. 1987 ). Accordingly, this C ourt has taken judicial notice

of the o riginal tria l record . Thus , an ad equa te exam ination of App ellant’s claim

of ineffective assistance of counsel can now be undertaken.

                                             -4-
                  II. Post-Conviction Relief Standard of Review

         As the chronology set out above shows, Appellant contends that the trial

court erred in denying his pro se petition for post-conviction relief based upon the

claim of ineffective assistance of trial counsel. In post-conviction proceedings,

the appellant bears the burden of proving the allegations raised in the petition by

clear and convincing evidence. Tenn. Code Ann. § 40-30-210 (f). Additionally,

the trial court’s findings of fact are conclusive on appeal unless the evidence

preponderates against th e judgm ent. Butler v. Sta te, 789 S.W.2d 898, 899

(Tenn . 1990).



                      III. Ineffective Assistance of Counsel

         A two-prong test for courts to em ploy in evaluating claim s of ineffective

assist ance of cou nsel w as pro noun ced b y the U nited S tates S uprem e Cou rt in

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984). Under the first prong, the defendant must show that

counsel’s performance was deficient and that counsel made errors so serious

that he was not functioning as “counsel” guaranteed the defendant by the

Sixth Am endm ent. Strickland, 104 S.C t. at 667.



         Under the second prong, the defendant must show that the deficient

performance prejudiced the defense and counsel’s errors were so serious as

to deprive the defen dant of a fa ir and reliab le trial. Strickland, 104 S.C t. at 667.

The app ellant must esta blish both prong s of the test and a failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on an

ineffective a ssistanc e claim. Goad v. State, 938 S.W.2d 363, 370 (Tenn.

1996).

                                          -5-
       The stand ard by which effective assista nce o f coun sel is jud ged in

Tennessee requires that the advice given or the services rendered by the

attorne y are w ithin the range of com peten ce de man ded o f attorne ys in

criminal cases. This “range of competency standard” was articulated by the

Supreme Court of Tennessee in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). Additionally, the Tennessee Constitution requires a showing that

coun sel’s pe rform ance was d eficien t and th at defic iency w as pre judicia l in

terms of rendering a reasonable probability that the result of the trial was

unreliable or that the proceedings were fundamentally unfair. Tenn.

Cons.Art.1 § 9.



       In the case at bar, Appellant raised the issue of ineffective assistance of

counsel at the hearing conducted at his pro se motion for a new trial. After the

trial judge carefully advised Appellant as to what he was required to show

under both the Strickland test and the Baxter standard, he presented ten

grounds which allegedly supported his contention. The trial court determined

that trial counsel’s conduct was within the range of competence demanded of

attorneys who pra ctice crim inal law an d conc luded tha t Appella nt failed to

demonstrate any prejudice as a result of any alleged deficient performance by

couns el. Strickland, 104 S.C t. at 667; Baxter v. Rose, 523 S.W.2d at 936.



       Factual findings of the trial court are conclusive on appeal unless the

appellate court finds that the evid ence p repond erates a gainst the judgm ent.

Butler v. Sta te, 789 S.W.2d at 899. Accordingly, the trial court’s findings in the

instant case will be conclusive unless this Court finds that Appellant has met




                                           -6-
the burden of showing that the evidence preponderates against the judgment

entered . Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim .App. 1990 ).



       Regarding Appellant’s first alleged deficiency, he complains that trial

counsel did not adequately investigate the case against him. Appellant

comp lains that co unsel failed to condu ct an ade quate inv estigation of the facts

and circumstances surrounding the indictment pending against the appellant

as well as defenses available to him. More specifically, Appellant contends

that trial coun sel only inte rviewed h im twice. T he trial cou rt found n o proof to

support Appellant’s claim that there was an inadequate investigation and no

showing of prejudice as a result of any alleged failure to conduct any particular

type of inve stigation. A ccording ly, we find this is sue to be without m erit.



       In reference to Appellant’s second complaint, he complains that counsel

failed to conduct an adequate voir dire examination and therefore, counsel

was not in a position to intelligently exercise the preemptory challenges

afforded Appellant by law. More specifically, Appellant complains that counsel

aliena ted the prosp ective ju rors ag ainst th e defe ndan t by rea son o f coun sel’s

behavior during the examination of the prospective jurors.



       Howeve r, the trial record established that counsel’s voir dire

examination was appropriate. Our review of the record indicates that counsel

properly explained to the prospective jurors the burden of proof in a criminal

trial and the requirem ent that a fa ir jury hear the facts of the case. Counsel

also questioned jurors who demonstrated a potential bias in the case. Indeed,

this line of questioning resulted in jurors being excused from the jury. Also,

                                           -7-
during the cou rse of the voir dire exam ination, counse l used six perem ptory

challenges. Therefore, Appellant has not overcome the trial court’s finding that

counsel conducted an adequate voir dire examination. Furthermore, we

cannot see how Appellant was prejudiced given counsel’s apparently thorough

examination of the prospective jurors and the lack of any evidence that the

jury, as seated, was biased.



      Regarding Appellant’s third alleged deficiency, the appellant contends

that the cross-examination of the witnesses was without prior preparation and

consisted of continuous repetition. At trial, five witnesses were cross-

examined by counsel. When cross-examining one witness, the prosecution

made only one objection on the basis that the question had been asked and

answered. Furthermore, there were no objections made by the prosecution

about counsel’s performance during the cross-examination of three additional

witnesses. Additionally, it was the trial court and not the prosecution that

directed counsel to repeat a question during the course of counsel’s cross-

exam ination. Also, the record reflects that counsel declined to cross-examine

two of the trial witnesses.




      The trial court concluded that there was no proof that counsel’s cross-

exam ination wa s continu ously rep etitive. This C ourt has noted tha t failure to

effectively cross-examine a witness does not necessarily indicate a deficient

perform ance u nless it affec ts the outc ome o f the case . Thom pson v. S tate,

958 S.W.2d 156, 165 (Tenn. Crim. App. 1997). In the case sub judice,

Appellant has failed to show that counsel’s cross-examination affected the

outcome of his case. Moreover, even if counsel’s alleged continuous

                                         -8-
repetition on cross-examination was deemed erroneous, Appellant has failed

to show that he w as prejud iced as a result of trial co unsel’s a ctions. Hartman

v. State, 896 S.W .2d 94,105 (T enn. 1995 ).



       The a ppellant’s fourth arg umen t concern s coun sel’s failure to object to

questions asked by the prosecution relative to the fears of children after the

comm ission of the crime in question. Ho wever, a review o f the record

indicates that there w ere no c hildren invo lved who testified in the trial.

Furthermore, at the hearing conducted at Appellant’s pro se motion for new

trial, Appellant testified that there were no children who testified in his case.

Therefore, the trial court determined this claim to be irrelevant. We concur

with the trial co urt and find this issue to be withou t merit.



       Regarding Appellant’s fifth contention, he complains that counsel

ineffectively prepared the defense witnesses for trial. Appellant further

conten ds that as a result of co unsel’s a ctions, the prosec ution wa s able to

elicit information from the witnesses which was in direct contradiction to the

testimony of the defendant and the position taken by his counsel. The trial

court de termine d that Ap pellant’s fifth co ntention w as factua lly incorrect.

Furthermore, our review of the record does not show that additional

preparation time with the witnesses could have prevented them from testifying

differently or p revent the state from effectively cro ss-exam ining the w itnesses .

Accord ingly, we find this issue to be withou t merit.



       Appellant’s sixth claim concerns counsel’s failure to make the position of

the appellant clear to the jury and the trial court. However, after a thorough

                                          -9-
review of the record, it is unclear to this Court what particular position the

defendant wanted raised. We quote from the transcript of Appellant’s pro se

motion for new trial, where the appellant testified to the following:



                [Counsel] failed to make the position of the defendant clear
         to the ju ry and the Co urt. An d the C ourt wa s so th oroug hly
         confused a t the end of the de fendant’s case in chief, the Court
         was at a loss to know what should be charged relative to the
         position o r defens e offered on beh alf of the de fendan t.


                [The prosecutor] prosecuting the case admitted being
         rattled, a nd he , too, ob viously , did no t unde rstand the de fenda nt’s
         position.


Motion for new trial transcript, page 29-30.



         Plainly, counsel made the appellant’s position clear to the jury and the

Cou rt. Cou nsel’s positio n in his c losing argum ent wa s bas ed on Appe llant’s

lack of motive for com mitting the crim e, the s tate’s fa ilure to p rove h is

involve men t in the c rime, a nd the state’s failure to prove Appe llant’s g uilt

beyond a reaso nable d oubt.



         The trial c ourt dete rmined that coun sel’s action s did not c onstitute

deficient performance. We concur with the trial court and believe that counsel

adequately presented the defense. Thus, we find this issue to be without

merit.



         Regarding Appellant’s seventh alleged deficiency, he contends that

couns el failed to co nfer and give advice to Appe llant before calling him to

testify at trial. More specifically, Appellant complains that he had executed a

                                            -10-
sworn s tateme nt before the trial com menc ed with re spect to h is decision not to

testify. However, our review of the record indicates that the appellant testified

at the s enten cing h earing and n ot at trial. Appellant testified at the sentencing

hearing that he and coun sel had discu ssed his pres entence rep ort and record

prior to tr ial. App ellant a lso tes tified tha t he an d cou nsel h ad rev iewed his

version of the statement that was given to the probation officer when she

compiled the presentence report. Thus, Appellant’s testimony indicates that

he conferred with counsel prior to testifying at the sentencing hearing.

Appellant fails to prove that counsel failed to confer with him prior to testifying

at the sentencing hearing. Appellant also fails to reveal what would have been

discovered through further advice by counsel prior to trial. Therefore, we

concur with the trial court’s determination that this alleged deficiency is without

merit.



         Appellant’s eighth claim concerns counsel’s failure to subpoena

witnesses that Appellant wanted called as alibi witnesses. At the hearing

conducted at Appellant’s pro se motion for new trial, the trial court found no

showing of w hich witnesses counsel failed to su bpoena . The determ inative

issue however, is Appellant’s failure to produce witnesses at the hearing

conducted at his pro se motion for new trial. T his Cou rt canno t specula te

upon the us efulne ss of th ese w itness es with out the inform ation th ey cou ld

have pro vided. Thom pson v. S tate, 958 S.W.2d at 164 (citing Black, 794

S.W .2d at 757 ).



         Furthermore, to succeed on this claim, Appellant must establish that he

was prejudiced by counsel’s failure to subpoena the witnesses. To establish

                                           -11-
prejudice, Appellant must: 1) produce the witness at his post-conviction

hearin g; 2) sh ow tha t throug h reas onab le inves tigation , trial cou nsel co uld

have located the witness; and 3) elicit favorable and material testimony from

the witnes s. Dento n v. State, 945 S.W.2d 793, 802-803 (Tenn. Crim. App.

1996) (citing Black, 794 S.W .2d at 757). App ellant’s failure to do so rend ers

this issue m eritless.



       Regarding Appellant’s ninth alleged deficiency, the Appellant complains

that counsel failed to ask for a mistrial after his failure to excuse a juror who

was employed as a deputy jailer. The prospective juror allegedly had

precon ceived ide as abo ut Appe llant’s guilt bec ause s he kne w the ap pellant.

However, a review of the record does not reveal a prospective juror who

indicated any kn owledge a bout the app ellant or the case d uring voir dire

examination. Clearly, even if a prospective juror had indicated knowledge

abou t the ap pellan t in the in stant c ase, th ese c omm ents w ould n ot nec essa rily

be grounds for a mistrial. This Court has held:



       Comments from a prospective juror in response to questions from
       defense counsel during voir dire that indicate his possession of
       information inculpating the defendant is not grounds for a mistrial
       absent evidence showing that the jury which heard the case was
       prejudicia l or biased by the state ment o f the prosp ective juror.


State v. Brown, 795 S.W.2d 689 (Tenn. Crim. App. 1990) (citing State v.

Porte rfield, 746 S.W .2d 441 (Te nn. 1988)).



       The trial court foun d no show ing that couns el’s failure to ask for a

mistrial rep resente d deficien t perform ance. W e find that A ppellant fa iled to


                                           -12-
show that any of the prospective jurors indicated knowledge about him or the

case. W e further determ ine that Appe llant failed to demon strate that the jury

was prejudicial or biased by any comment made by a prospective juror during

voir dire exa mination . Thus, w e find this iss ue is witho ut merit.



       Appe llant’s last com plaint con cerns co unsel’s o pening statem ent.

Appellant complains that counsel mentioned to the jury that Appellant had

been in dicted for o ther crim es and that he ha d a prior crim inal record .

Howeve r, the trial court determine d that if this had occu rred, it would have

been base d on tria l tactics. H owev er, a rev iew of th e trial rec ord ind icates this

complaint to be factually incorrect. The only mention of an indictment made

by counsel in his opening statement was his reference to Appellant’s plea of

not guilty after he was arrested, indicted, and arraigned on the present charge.

Counsel followed this comment by stating that the appellant had maintained

his inn ocen ce from the inc eption of the tria l. Furthermore, the record does not

reflect that either counsel or the prosecution mentioned Appellant’s prior

crimin al reco rd durin g ope ning s tatem ent. T herefo re, the r ecord amp ly

suppo rts a finding that this issu e is withou t merit.



       A review of the record in this case does not convince this Court that

proof preponderates against the judgment entered by the trial court denying

Appellant’s ineffective a ssistance of co unsel claim. T he post-con viction court

determine d that some of the decisions tha t were attacked by Appellant w ere

tactical decisions generally not indicative of deficient performance. We concur

with the po st-convictio n court a nd find tha t it is not this Co urt’s function to

“secon d gues s” tactical an d strateg ic choice s mad e by cou nsel. Camp bell v.

                                           -13-
State, 904 S.W.2d 594,596 (Tenn. 1995) (citing Hellard v. S tate, 629 S.W.2d

at 9).



         From our examination of the original trial record and the transcript of the

hearing conducted at Appellant’s pro se motion for a new trial, we do not

believe that Appellant demonstrated that counsel’s representation was

deficient o r that he w as prejud iced as a result of an y alleged d eficiency.

Furthermore, the appellant did not establish that counsel’s performance

deprived him of a fair and reliable trial or that services rendered by this trial

coun sel we re not w ithin the range of com peten cy dem ande d of atto rneys in

criminal cases.



         We conclude that Appellant received effective assistance of trial

coun sel. Ac cordin gly, the ju dgm ent of th e trial co urt den ying A ppella nt’s claim

of ineffective assistan ce of cou nsel is affirm ed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




                                          -14-
