          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON              FILED
                         FEBRUARY 1999 SESSION         March 15, 1999

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
JOE NATHAN PERSON,                 )
                                   )    NO. 02C01-9806-CC-00175
      Appellant,                   )
                                   )    MADISON COUNTY
VS.                                )
                                   )    HON. FRANKLIN MURCHISON,
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction Relief)



FOR THE APPELLANT:                      FOR THE APPELLEE:

JEFF MUELLER                            JOHN KNOX WALKUP
102 E. Baltimore, Ste. 127              Attorney General and Reporter
P. O. Box 2831
Jackson, TN 38302                       J. ROSS DYER
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General
                                        (Pro Tem)

                                        MARK E. DAVIDSON
                                        Assistant District Attorney General
                                        302 East Market Street
                                        Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION


       Petitioner, Joe Nathan Person, appeals the denial of his petition for post-

conviction relief by the Circuit Court of Madison County. Petitioner was convicted

of first degree murder and received a sentence of life imprisonment. The sole issue

in this appeal is whether petitioner was denied effective assistance of counsel.

After a careful review of the record, we AFFIRM the judgment of the trial court.



                               PROCEDURAL HISTORY



       On September 10, 1991, petitioner was convicted of the first degree murder

of Danny Ray Tyson and sentenced to life imprisonment. He perfected a direct

appeal to this Court which affirmed the conviction and sentence. See State v. Joe

Nathan Person, C.C.A. No. 02C01-9205-CC-00106, Madison County (Tenn. Crim.

App. filed September 29, 1993, at Jackson).

       On September 7, 1994, petitioner filed a petition for post-conviction relief

alleging ineffective assistance of counsel.1 The post-conviction court conducted an

evidentiary hearing on April 2, 1998, found the allegations to be without merit, and

entered an order denying post-conviction relief on May 19, 1998. This appeal

followed.



                                          FACTS



       The pertinent underlying facts are summarized from this Court’s opinion in

the direct appeal. On October 1, 1989, at approximately 1:00 a.m., petitioner

knocked on Florene Hobson’s door asking for “Dino.” Dino owed the petitioner

money. Eugene Cole and the victim, Danny Ray Tyson, advised the petitioner that

Dino was not present. According to the eyewitness Cole, petitioner walked off the


       1
        Contrary to the state’s argument, this matter is controlled by the prior Post-Conviction
Procedure Act, Tenn. Code Ann. §§ 40-30-101 et seq, and not the current Act, Tenn. Code
Ann. §§ 40-30-201 et seq. The current Act only applies to petitions filed after May 10, 1995.
See Tenn. Code Ann. § 40-30-201 Compiler’s Notes.

                                              2
porch and stated, “[y]ou don’t know nothing about me.” Petitioner then fired a shot

into the ground, pointed the gun at the victim, misfired two times, and then fired the

gun again, killing the victim. The petitioner got into a car with his friend, Anthony

Carter, and left the scene.

         Subsequently, officers arrested the petitioner at his girlfriend’s residence.

Officers found a .38 revolver outside this residence beside a wood pile. The

revolver’s cylinder contained two empty shells that had been fired, two rounds that

had not been fired, and two empty cylinders with no rounds in them.

         The petitioner testified at his trial. He claimed that Dino was dealing drugs

from Hobson’s residence. Petitioner did not believe Cole when Cole told him that

Dino was not present, and the two got into a shoving match which the victim joined.

During the struggle, Cole’s gun fell to the floor, petitioner grabbed it and fell

backward; the gun went off. Petitioner stated he then threw the gun and left the

scene.



                            POST-CONVICTION HEARING



       At trial petitioner was represented by H. Rainey Pegram, who died after the

trial but before the post-conviction hearing. Three witnesses testified at the post-

conviction hearing: Terry Wayne Clark, Dale Person and the petitioner.

       Clark testified he was with petitioner on the day of the homicide, and the

petitioner had consumed a “pretty good amount” of alcohol that day. Clark was

never contacted by defense counsel and never told anyone these facts.

       Dale Person, petitioner’s brother, testified that he saw the petitioner shortly

prior to the homicide.       He described the petitioner as “tore up” and “highly

intoxicated.” However, he did not provide this information to defense counsel

because he was never contacted by anyone.

         Petitioner testified to the following:

                (1) he told his attorney about Clark and Dale Person;

                (2) his attorney met with him five or six times before
                trial; at least two or three of the meetings were in

                                             3
              counsel’s office;

              (3) he was familiar with the criminal justice system
              having had three prior convictions;

              (4) his attorney advised him that intoxication would not
              be a viable defense;

              (5) his attorney advised him to reject the state’s plea
              offer of 35 years at 35% since counsel felt the jury
              would convict of a lesser offense;

              (6) his attorney did not prepare him to testify at trial;

              (7) he consumed gin, beer, marijuana and cocaine on
              the day of the shooting;

              (8) he did not testify at trial about his consumption of
              beer, gin, marijuana and cocaine;

              (9) contrary to his trial testimony, he actually secured
              the pistol from Carter, and fired in self-defense; and

              (10) he told his attorney the same facts that he told the
              jury.

       The post-conviction court found that trial counsel’s performance was not

deficient nor prejudicial to petitioner. Specifically, the post-conviction court found

petitioner told his counsel the same things he testified to at trial. Therefore, counsel

based petitioner’s defense upon accident and a denial of an intentional shooting.

The court further found that the petitioner’s detailed trial testimony as to the facts

and circumstances surrounding the shooting was inconsistent with an intoxication

defense. Finally, the trial court concluded that the evidence against petitioner was

overwhelming; thus, trial counsel could not have done anything to change the

outcome of the trial.



                              STANDARD OF REVIEW



       The judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.

1995). The post-conviction court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by those findings unless the evidence in the record



                                           4
preponderates against them. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);

Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934

S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or reevaluate

the evidence, nor substitute its inferences for those drawn by the trial judge. Henley

v. State, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim.

App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

Questions concerning the credibility of witnesses and the weight and value to be

given to their testimony are resolved by the trial court, not this court. Henley v.

State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755. The burden of

establishing that the evidence preponderates against the post-conviction court’s

findings is on petitioner. Henley v. State, 960 S.W.2d at 579; Black v. State, 794

S.W.2d at 755.



                    EFFECTIVE ASSISTANCE OF COUNSEL



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

establish prejudice, petitioner must demonstrate a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.

       The test in Tennessee to determine effective assistance is whether counsel’s

performance was within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner must overcome the

presumption that counsel’s conduct falls within the wide range of acceptable



                                          5
professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at

2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v.

Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).



                DISPOSITION OF PETITIONER’S CONTENTIONS



                                          (1)

       Petitioner contends trial counsel did not confer with him sufficiently prior to

trial but concedes that he saw counsel on several occasions prior to trial. Petitioner

has made no showing that additional conferences would have aided his defense.

This issue is without merit.

                                          (2)

       Petitioner contends counsel was deficient in not filing a motion to suppress

the gun before the day of trial. We agree that counsel was deficient with regard to

this untimely filing. However, petitioner has made no showing as to the merits of

such a motion. Accordingly, he has not established prejudice. See Jimmy Leslie

Sluder v. State, C.C.A. No. 03C01-9605-CR-00184, Knox County (Tenn. Crim. App.

filed February 27, 1997, at Knoxville). This issue is without merit.

                                          (3)

       Petitioner contends counsel was deficient in failing to interview or subpoena

Carey Dean (Dino) who was present at the scene of the crime. However, Dean did

not testify at the post-conviction hearing. Petitioner has failed to establish prejudice.

See Black v. State, 794 S.W.2d at 757. This issue is without merit.

                                          (4)

       Petitioner contends counsel failed to prepare for the testimony of the co-

defendant Carter, who reached a plea agreement with the state prior to petitioner’s

trial. However, Carter did not testify at trial. There has been no showing of

deficiency nor prejudice. This issue is without merit.

                                           (5)

       Petitioner contends counsel was deficient in failing to advocate intoxication


                                           6
so as to reduce the grade of homicide. Counsel obviously made a strategical

decision not to advance such a defense. Petitioner’s ability to remember and relate

the details of the shooting are not consistent with this defense.         In view of

petitioner’s position that the shooting was accidental, counsel was not deficient in

failing to advocate intoxication. We will not “second guess” counsel’s strategic

decision based upon hindsight. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Petitioner has not shown a reasonable probability that the outcome of the trial would

have been different had intoxication been advocated. This issue is without merit.

                                         (6)

         Petitioner contends counsel was deficient in failing to pursue a lesser

offense. The post-conviction court noted, pursuant to the facts related by petitioner

at trial, the lesser offense of involuntary manslaughter might apply. However, the

state was unwilling to concede the applicability of this lesser offense. Petitioner

rejected a plea offer of 35 years at 35%.        At trial, defense counsel argued,

consistent with petitioner’s testimony, that the killing was, at most, accidental. The

trial court charged the jury as to first degree murder, second degree murder,

voluntary manslaughter and involuntary manslaughter. The jury rejected all lesser

grades of homicide.      The evidence does not preponderate against the post-

conviction court’s findings that counsel was not deficient in this regard.

Furthermore, petitioner has not established a reasonable likelihood that the result

would have been any different had counsel argued differently. This issue is without

merit.

                                         (7)

         Petitioner contends counsel was deficient in failing to object to various

improper questions and statements at trial.       We have reviewed the specific

instances related by petitioner in support of this contention. We conclude petitioner

has not shown a reasonable probability that the outcome of the trial would have

been any different had counsel objected. This issue is without merit.

                                         (8)

         Petitioner contends counsel was deficient in failing to cross-examine state


                                          7
witnesses on key issues. Again, we conclude petitioner has failed to establish the

likelihood of a different outcome of the trial had cross-examination been conducted

differently. This issue is without merit.

                                            (9)

       Petitioner contends he did not expect to testify at trial and was inadequately

prepared by his counsel. The post-conviction court found petitioner was not

surprised when called upon to testify and that petitioner was anxious to testify. His

testimony was consistent with the facts he related to counsel and supported an

accidental shooting. Petitioner now states that he perjured himself at trial, and the

shooting was in self-defense. We find no reason to blame counsel. This issue is

without merit.

                                            (10)

       Petitioner contends counsel was deficient in failing to object to the judge’s

questioning of petitioner during his trial testimony. We have reviewed the transcript

as to this questioning. We conclude the questioning was proper, and there was no

reason for counsel to object. This issue is without merit.

                                            (11)

       Finally, petitioner contends counsel went into trial without an appropriate

strategy. Counsel’s strategy was consistent with the facts related by the petitioner

to him and to the jury. The fact that the jury rejected petitioner’s testimony is not

counsel’s fault. We conclude petitioner has failed to show counsel was deficient in

this regard. This issue is without merit.



                                   CONCLUSION



       We conclude the evidence does not preponderate against the findings of the

trial court. Accordingly, the judgment of the trial court is AFFIRMED.




                                             8
                                _________________________________
                                JOE G. RILEY, JUDGE



CONCUR:



____________________________________
JOHN H. PEAY, JUDGE



____________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




                               9
