        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE

                          MARCH SESSION , 1998


GREGORY JONES,                )   C.C.A. NO. 01C01-9706-CR-00226
                              )
      Appe llant,             )
                              )
                              )   DAVIDSON COUNTY
VS.                           )
                              )   HON. J. RANDALL WYATT
STATE OF TENNESSEE,           )   JUDGE
                              )
      Appellee.               )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY
                                                      FILED
                                               April 16, 1998

FOR THE APPELLANT:                FOR THE APPELLEE: W. Crowson
                                                    Cecil
                                                   Appellate Court Clerk
PAUL J. BRUNO                     JOHN KNOX WALKUP
Washington Square Bldg.           Attorney General and Reporter
222 Se cond A venue, N orth
Suite 350M                        TIMOTHY F. BEHAN
Nashville, TN 37201               Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243-0493

                                  VICTOR S. JOHNSON
                                  District Attorney General

                                  KATRIN MILLER
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 Se cond A venue N orth
                                  Nashville, TN 37201-1649


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Petitioner, Gregory Jones, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for pos t-conv iction relief. He was co nvicted by a Da vidson Cou nty jury

of felony murder and attem pted espec ially aggravated rob bery. 1 The trial court

sentenced him to co nsecu tive terms of life imprisonment and fifteen ye ars. H is

convictions and sentences were affirmed on app eal to this C ourt. 2 Our supreme

court denie d perm ission to app eal on April 22, 1996. He filed a pro se petition for

post-conviction relief on May 20, 1996, which was amended with the assistance

of counsel on August 19 , 1996. In his petition for post-conviction relief, the

Petitioner argues that he was denie d effec tive ass istanc e of co unse l at his tria l.

The trial court conducted an evidentiary hearing on December 18, 1996, and after

considering the evidence, issued an order denying the petition on January 10,

1997. W e affirm the judgm ent of the tria l court.



       The record contains little information concerning the circumstances of the

offenses. From the opinion of this Court on direct appea l, it appears that the

offenses occurred in the early morning hours of May 6, 1991. Craig Alexan der,

the manager of a Steak and Ale restaurant in Nashville was leaving the

restaurant with his wife, the ir child, a nd the assistant manage r. They were

confronted by a you ng bla ck m ale with a gun. Alexander lunged for the gun and

was killed by a single shot.


       1
           Tenn. Code Ann. §§ 39-13-202, 39-12-101, 39-13-403.
       2
        State v. Gregory K. Jones, C.C.A. No. 01C01-9406-CR-00185, Davidson County
(Tenn. Crim. App., Nashville, Dec. 19, 1995), perm. to appeal denied (Tenn. 1996).

                                            -2-
      Police officers developed information leading them to David Shelton.

Shelton eventually pleaded guilty to the murder and received a sixty-year

sentence. As part o f the plea, Shelton agreed to testify against the Petitione r.

At the Petitioner’s trial, however, Shelton refused to testify for fear of retaliation

by other prison ers an d was held in conte mpt o f court. P ursua nt to R ule 804(b)(1)

of the Ten nesse e Rules of Eviden ce, She lton’s prior tes timony a t a pretrial

hearin g was adm itted at th e Petitio ner’s trial. That testimony indicated that the

Petitioner was with Shelton when the latter killed Craig Alexander, that the

Petitioner had planned the robbery from his personal knowledge as a former

employee of the restaurant, and that the Petitioner had provided the gun.



      To corroborate S helton’s implication o f the Petitioner, the State offered the

testimony of two individuals who were near the scene of the crime at the time of

the crime. One of these individuals saw two black males standing near the front

door of the Ste ak an d Ale restaurant immediately prior to the commission of the

offenses.   The other individual testified that he witnessed two black males

running away from the Steak and Ale restaurant immediately after he heard a

gunsh ot. Neithe r of thes e individ uals co uld identify the Petitioner as having been

one of the men they had seen.



      The State also offered proof that a duffel bag found in a wooded area

behind the Steak and Ale restaurant had been in the Petitioner’s bedroom closet

appro ximate ly one m onth prio r to the com mission of the offen ses. The bag

contained a brown glove, a pair of black jogging pants, and scissors.             The

Petitioner adm itted in a police interview that the scissors belonged to him. Also

located in the wooded area was a .32 caliber handgun.                Testimony was

                                          -3-
presented that the .32 caliber handgun was the source of the bullet which killed

Craig Alexander.     The wooded area itself lay between the Steak and Ale

restaurant and the apa rtment com plex where the Petitioner and Shelton shared

a unit. A traine d police d og tracke d a hum an sce nt from th e Steak and Ale

restaurant through the wooded area to the parking lot of the apartment complex.



       In addition, the State offered the testimony of police officers who had

conducted interviews with the Petitioner. In those interviews, the Petitioner stated

that Shelton had told him about committing the crime.              The Petitioner’s

statem ents about how he had first learned of the crime we re, however,

inconsis tent.



       In all, the State presented testimony from ten to fifteen witnesses. The

Petitioner offered no proof. After considering the evidence, the jury found the

Petitioner guilty of felony murd er and attem pted e spec ially aggravated robbery.

The convic tions w ere affir med on dire ct app eal. See State v. Grego ry K. Jones,

C.C.A. No. 01C01-9406-CR-00185, Davidson Coun ty (Tenn . Crim. A pp.,

Nash ville, Dec. 19 , 1995), perm. to appeal denied (Tenn. 199 6).



       On May 20, 1996, the Petitioner filed a pro se petition for post-conviction

relief, arguin g that d efens e cou nsel a t his trial w as ineffective. Counsel was

appointed and amended the petition on August 19, 1996. Through the amended

petition, the Pe titioner argued that his trial attorney, Michael Thompson, rendered

ineffective assistance of counsel in two primary ways: (1) that defense counsel

failed to call available witnesses to rebut the State’s proof of motive, and (2) that




                                         -4-
defense counsel failed to cross -exam ine Da vid Shelton effectively regarding the

plea agreem ent made in exchange for his testimony ag ainst the Petitioner.



      The trial court conducted an evidentiary hearing on the petition for pos t-

conviction relief on D ecem ber 18, 1996. At the hearing, the Petitioner testified

that he recalled meeting with defense counsel, Michael Thompson, only once, but

they discussed the case several times by telephone. From these discussions,

the Petitioner beca me a ware th at the S tate’s a lleged theory of his motivation for

committing the crime was that he had been terminated from his employment at

Steak and Ale and that he needed money to support his drug habit. The

Petitioner stated that he informed Thompson of severa l witnes ses, in cludin g his

girlfriend, Tammy Donnelly, who could testify on his behalf to rebu t the Sta te’s

theory of motive .   Accord ing to the P etitioner, T homp son state d that these

witnesses were unnecessary because the State’s case against him was weak.

In addition, t o the best of his recollection, the Petitioner did not believe that

Thompson cross-examined David Shelton concerning the deal he had received

in exchange for his testimony. On cross-examination, the Petitioner admitted that

Tho mps on’s examination of David Shelton was c ut sho rt by Sh elton’s refusal to

answer further questions.



      The Petitioner also offered the tes timony of his girlfriend, Ta mmy D onnelly.

Don nelly testified that she had informed Thompson prior to trial that she was

willing to testify on the Petitioner’s behalf. In particular, she stated that she could

have testified at trial that the Petitioner’s financial situation was fine, that he did

not use drugs, and that he had not been terminated by Steak and Ale. On cross-




                                          -5-
examination, Donnelly adm itted that she had c alled Crime S toppers 3 with

information implicating David Shelton in the shooting of Craig Alexander and that

she had re ceived a one thous and d ollar ($1000) reward. She further admitted

that the information she reported to Crime S toppers cam e from the P etitioner.



       The only other witness to testify at the post-conviction hearing was the

Petition er’s trial attorney, M ichael Thompson. Thompson testified that he was

licensed as an attorney in 1972 and that his practice consisted of app roxim ately

thirty percent (30%) criminal work. For the Petitioner’s trial, he discussed the

case with the Petitioner by telephone on a number of occasions. He also met

with the Petitioner twice at the jail, during one of which times he also interviewed

David Shelton . In addition, he discussed the case with the Petitioner at hearings

prior to trial. One of these hearings was a parole revocation hearing which

Thompson requested specifically in hopes of gaining information about the

State ’s case for th e Alexan der killing. Thompson also filed the ordinary disco very

motions to ga in information ab out the State’s ca se against the Petitioner.



       From these sources of informatio n, Th omp son d iscove red tha t the on ly

witness for the Sta te who c ould iden tify the Petitioner as having been at the

scene of the crime was David Shelton. Thompson also discovered that the State

had circum stantia l evidence supporting Shelton’s implication of the Petitioner, but

Thompson believed th at this evide nce wa s relatively we ak. Accord ingly, the

princip al defense strategy was to attack Shelton’s credibility.             Of course,

Thompson was prevented from cross-examining Shelton fully, including



       3
         Crime Stoppers is a local program which offers reward money for information
leading to the development and arrest of suspects of certain crimes.

                                           -6-
questioning him about the plea bargain he had received from the State, when

Shelton attempted to invoke his Fifth Amendment privilege and refused to answer

further ques tions. T hom pson testified that ha d he b een a ble to question Shelton

about his plea agreement, he would certainly have done so.



      With regard to Tammy Donnelly, Thompson testified that he spoke with her

prior to the Petitioner’s trial. Thompson elected not to call Donnelly as a witness

for the Petition er for two re asons . First and foremost, the information which

Don nelly had related to Crime Stoppers ha d com e from th e Defe ndant.

According to Thom pson, th e nature of this inform ation was suc h that the jury

could have concluded that the only way the Petitioner knew of these facts was

because he had been involved in the offenses. Second, Donn elly’s testimony

about the Petitioner’s personal and financial circumstances seemed to have been

related to her b y the P etitioner himself rather than acquired by independent

knowledge. Thom pson testified that ha d the P etitioner given him the name of

any other witnesses whose testimony would have attacked the credibility of the

State’s witnesses, he would have called them.



      On cross-examination, Thompson admitted that he was a ble to ask David

Shelton several questions before Shelton refused to testif y further. Thompson

also stated that the Petitioner suggested no possible witnesses, character or

otherwise, othe r than Tam my Don nelly.



      After considering the evidence presented at the post-conviction hearing,

the trial court entered a detailed order denying the petition. In short, the trial

court d id not find the Petitioner’s proof to be persuasive and instead accredited

                                         -7-
Michael Tho mps on’s testimony. The trial court found that Thompson’s decision

not to call Tammy Donnelly was a tactical decision supported by the fact that

Don nelly’s Crime Stoppers information would likely have caused the jury to infer

that the Petitioner had been involved in the offens es. Moreove r, the trial court

found that the information Donn elly had rec eived with respec t to the Pe titioner’s

personal and financial status originated “second-hand” through the Petitioner

himse lf. The trial court found further that the Petitioner had not suggested any

other p otentia l witnes ses fo r Tho mps on to c all at trial.



       With regard to the failure of Thompson to cross-examine David Shelton

about his plea barga in with th e State , the trial c ourt fou nd tha t Tho mps on’s

opportu nity to impeach Shelton’s cred ibility was cut short by She lton’s refus al to

testify. The trial court noted that this unforseen event did not indicate any

ineffectiveness on the part of T hom pson . As a re sult, the trial court concluded

that T hom pson ’s repre senta tion fell within the range of competence demanded

of attorneys in criminal cases and therefore denied the petition for post-conviction

relief. It is from the order of denial that the Petitioner now appeals.



       In determining w hether or not co unsel provided effective assista nce a t trial,

the court mus t decid e whe ther or not co unse l’s perfo rman ce wa s within the range

of competence demanded of attorneys in crim inal cases . Baxter v. Rose, 523

S.W.2d 930 (Te nn. 19 75).         T o suc ceed on a cla im tha t his cou nsel was

ineffective at trial, a petitioner bears the burden of showing that his counsel made

errors so serious that he was not functioning as counsel as guaranteed under the

Sixth Amendment and that the deficient representation prejudiced the petitioner

resulting in a failure to produ ce a reliab le result. Strickland v. Washington, 466

                                             -8-
U.S. 668, 68 7, reh’g denied, 467 U.S. 12 67 (198 4); Coop er v. State , 849 S.W.2d

744, 74 7 (Ten n. 1993 ); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To

satisfy this second prong the pe titioner m ust sh ow a re ason able probab ility that,

but for counsel’s un reasonab le error, the fac t finder w ould have h ad rea sona ble

doubt regarding petitioner’s g uilt. Strickland, 466 U.S. at 695. T his rea sona ble

probab ility must be “su fficient to undermine confidence in the outcome .” Harris

v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



       When reviewing trial counsel’s actions, th is cour t shou ld not u se the bene fit

of hindsight to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard

v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be

judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.



       W e note th at in post-conviction relief proceedings, the petitioner bears the

burden of proving the allegations in his or her petition by clear and convincing

evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996). Furthermore, the

factual findings of the trial court in post-conviction hearings are conclusive on

appeal unless the evidence preponderates against them. See State v. Buford ,

666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



       Applying the above standards to the case sub judice, we believe that the

Petitioner has failed to establish that Thompson’s representation was

cons titutiona lly deficient. The Petitioner testified at the post-conviction hearing

that defense coun sel wa s ineffe ctive in that he failed to call any witnes ses o n his

behalf, in particular Tammy Donnelly, who could have rebutted the State’s theory

                                           -9-
of the case . In contras t, Michael Thompson testified that the Petitioner provided

him with no potential witnesses other than Tammy Donnelly. After evaluating the

credibility of the witnesses at the post-conviction hearing , the trial court

accredited Thompson’s testimony on this point. The trial court was in a much

better position to evaluate credibility than this Court, and the evidence in the

record does not preponderate against the trial court’s finding. Furthermore, we

agree with the trial court that the decision not to call Donnelly was a tactical

choice supported by the proof in the re cord. W hile Do nnelly m ay hav e bee n able

to attack the Sta te’s the ory of th e Petitio ner’s motive for committing the offenses,

she would have been vulnerable to cross-examination regarding information from

which the jury could infer that the Petitioner had, in fact, been involved in the

crime. We believe that the decision no t to call D onne lly was a soun d strate gic

choice given the circumstances confronting Thompson.



       With regard to Tho mps on’s cross-examination of David Shelton, we agree

with the trial court that the record ind icates tha t Thom pson’s o pportun ity to cross-

examine Shelton was cut short b y Shelton ’s attemp t to invoke h is Fifth

Amendment privilege.        The Petitioner seems to imply that Thompson was

ineffective for failing to cross-examine Shelton about his plea agreement during

the few questions asked w hich Sh elton did a nswer b efore refu sing to tes tify

further. We believe, howeve r, that Thompson’s failure to ask Shelto n abo ut his

plea agreement during the questions which Shelton did answer does not reveal

any ineffectiveness given Shelton’s unforseen refusal to answer further

questions. In fact, it appears that the trial court found Shelton’s Fifth Amendment

privilege inapplicable and ordered him to answer further questions. Shelton

refused to do so and was found in contempt of court. Moreover, Thompson

                                          -10-
testified that had he been able to do so, he would indeed have cross-examined

Shelto n about his plea a greeme nt in an attemp t to attack Shelton’s c redibility.

Under these circumstances, we cannot conclu de that T homp son’s ina bility to

cross-examine Shelton about his plea agreement constituted deficient

representation.



         For the reas ons se t forth in the d iscussio n above , we con clude tha t the

Petitioner has failed to demonstrate that the trial court erred in denying the

petition for post-conviction relief. We therefore affirm the judgment of the trial

court.



                                    ____________________________________
                                    DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                                          -11-
