            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                 Assigned on Briefs December 4, 2001

                    GEORGE LANGFORD v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Shelby County
                                   No. P-23634   Chris Craft, Judge



                        No. W2001-00371-CCA-R3-PC - Filed February 7, 2002


The Defendant, George Langford, was convicted of first degree felony murder, aggravated burglary,
aggravated assault, and reckless endangerment. He was sentenced to life without the possibility for
parole for the murder and to concurrent sentences of four, five, and two years for the other crimes
respectively. The Defendant appealed his convictions and this Court affirmed the convictions and
the sentences.1 Our supreme court granted the Defendant’s application for appeal and also affirmed
his convictions and sentences.2 The Defendant then filed a petition for post-conviction relief alleging
ineffective assistance of counsel. The trial court dismissed the petition. The Defendant now appeals
to this Court alleging that the trial court erred in denying him relief. We affirm the judgment of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID
G. HAYES, J., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, George Langford.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District Attorney
General, for the appellee, State of Tennessee.




                                                      OPINION

        1
          See State v. George Langford , No. 02-C01-9703-CR-00099, 1997 WL 632805 (Tenn. Crim. App., Jackson,
Oct. 15, 1997 ).

        2
            See State v. Langford, 994 S.W .2d 126 (T enn. 1999 ).
         In the early morning of April 10, 1995, the Defendant arrived at the duplex he shared with
his girlfriend, Diana Wilson, after having spent two or three weeks in Mississippi. The duplex was
leased to Ms. Wilson. When the Defendant requested permission to enter the duplex to get his
clothes and see his children, Ms. Wilson refused. The Defendant became angry, suspecting that Ms.
Wilson had a male visitor, and fired a shot through the living room window. The Defendant then
directed one of his companions to kick in the door, and entered the duplex. Ms. Wilson hid in her
bedroom closet with fifteen-year-old Tamara Gayles, who was visiting. The Defendant entered the
bedroom and shot two or three times into the closet, striking and killing Miss Gayles.

        On direct appeal to this Court, the Defendant contended that the evidence was insufficient
to support his aggravated burglary and felony murder convictions because the State failed to prove
that the duplex was not the Defendant’s residence and, alternatively, that the Defendant was entitled
to a jury instruction on the lesser-included offense of criminal trespass. This Court affirmed the
Defendant’s convictions, and the supreme court affirmed this Court’s ruling.

         The Defendant now contends that he was prejudiced by his trial counsel’s ineffective
assistance both prior to and during trial. The Defendant argues that trial counsel was ineffective in
failing to properly prepare for trial, negotiate a plea agreement, interview potential witnesses, obtain
a mental evaluation of the Defendant, and properly advise him of the dangers of testifying on his own
behalf.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate 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. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578-79.

        Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This
right to counsel includes the right to effective counsel. See Strickland v. Washington, 466 U.S.
668, 686 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the


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burden of showing that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the
defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns, 6
S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had
reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.

         The Defendant first contends that trial counsel was ineffective in her preparation for trial.
Specifically, the Defendant argues that counsel did not review discovery, interview witnesses, or
subpoena a possible witness to testify on behalf of the Defendant. Trial counsel testified that she
received and reviewed discovery from the State. Trial counsel, who at the time of trial was the
Coordinator for the Capital Defense Unit of the Shelby County Public Defender’s Office, further
stated that she met with the Defendant on eighteen different occasions to discuss his case and prepare
for his trial. According to trial counsel, investigators from the Public Defender’s Office interviewed
all potential witnesses who could be located.

         The Defendant’s central complaint is that trial counsel failed to subpoena and call a crucial
“alibi” witness to testify that the apartment the Defendant was accused of burglarizing was, in fact,
his own residence. The Defendant contends he could not have burglarized his own home, and,
therefore, the felony murder charge based on the underlying offense of aggravated burglary must be
reversed.3 The Defendant believes this witness’s testimony was crucial in establishing his residence
at the time of the offense. Trial counsel testified that the Defendant informed her of this witness
prior to trial. However, trial counsel also testified that the testimony of the Defendant’s girlfriend
clearly established that the Defendant lived in the residence in question at the time of the offense,
and that issue was never contested by the State. Therefore, the witness’s testimony would have been
cumulative.

       The Defendant also contends that trial counsel was ineffective in failing to effectuate a plea
bargain on behalf of the Defendant. However, the Defendant concedes that he was unwilling to


         3
          The Defendant also raised this issue on direct appeal and this Court and our supreme court found sufficient
evidence to sustain the convictions for aggravated burglary and felony mu rder. See State v. Langford , 994 S.W.2d at
127; State v. George L angford, supra, fn. 2. Our supreme court held that only the Defendant’s girlfriend, Ms. Wilson,
was in “law ful po ssession ” of the pro perty , and thus sh e had the right to refuse th e Defendan t entry. Id. at 128.

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plead guilty to an offense greater than second degree murder, and trial counsel testified that the
District Attorney, honoring the wishes of the victim’s family, was unwilling to enter into a plea
agreement. Trial counsel stated and the Defendant concedes that an attempt was made to negotiate
a plea.

        Next, the Defendant argues that trial counsel was ineffective by not requesting a mental
evaluation of the Defendant. The Defendant has a history of alcoholism in his family and was
apparently intoxicated at the time of the offense. Trial counsel stated that in her numerous meetings
with the Defendant she never observed any indication that a mental evaluation would be necessary
or helpful. Furthermore, the Defendant’s intoxication at the time of the offense was a part of the
defense’s “accidental killing” theory of the case which was rejected by the jury.

        Finally, the Defendant contends that he was not properly advised about the possibility of a
prior manslaughter conviction being used for impeachment purposes. This contention contradicts
the Defendant’s own testimony at the hearing on the petition for post-conviction relief. The
Defendant testified that trial counsel informed him that the conviction could be used by the
prosecution if the Defendant “opened the door.” The Defendant testified that the prior conviction
was introduced during the sentencing phase of the Defendant’s trial, and not after the Defendant’s
testimony during the guilt phase. Furthermore, trial counsel supported the Defendant’s testimony
that she fully informed him of the advantages and disadvantages of testifying on his own behalf.

        It is clear from the record that the trial court credited the testimony of trial counsel with her
extensive case file, and not the factual allegations made by the Defendant. The trial court stated that
“[n]one of the allegations in the petition having been found to have merit, Defendant has failed to
carry his ‘burden of proving the allegations of fact by clear and convincing evidence.’” See Tenn.
Code Ann. § 40-30-210(f). We conclude that the record supports the trial court’s finding that trial
counsel’s performance was within the range of competence demanded of attorneys in criminal cases.
See Baxter, 523 S.W.2d at 936; Hicks, 983 S.W.2d at 245.

                                         CONCLUSION
       For the foregoing reasons, we conclude that the trial court properly denied the Defendant’s
request for post-conviction relief. The judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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