         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 13, 2001

        TERESA DEION SMITH HARRIS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Henry County
                            No. 13023    Julian P. Guinn, Judge



                     No. W2000-02611-CCA-R3-PC - Filed August 3, 2001


The petitioner was originally convicted by a Henry County jury of first degree felony murder and
sentenced to life without the possibility of parole. The conviction was affirmed on direct appeal.
The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this
appeal, the petitioner contends she is entitled to post-conviction relief based on (1) newly discovered
evidence and (2) ineffective assistance of counsel. After a thorough review of the record, we
conclude that the post-conviction court correctly denied post-conviction relief.

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

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., and
CORNELIA A. CLARK, Sp. J., joined.

Teresa McCaig Marshall, Paris, Tennessee, for the appellant, Teresa Deion Smith Harris.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The facts surrounding this July 1993 homicide are gruesome. The petitioner and her two
male accomplices spent the day consuming various forms of alcohol, smoking marijuana, and taking
Valium. Their vehicle eventually broke down, and they decided to stop and steal the next
approaching vehicle. Petitioner flagged down the next vehicle, and the trio overcame the nineteen-
year-old driver. The driver was kidnapped, beaten, shot, stabbed, murdered, and mutilated. The
petitioner admitted to pressing the victim’s excised heart to her lips and stabbing the victim’s body
once, but she otherwise denied participation in the mutilation. See State v. Harris, 989 S.W.2d 307,
309-11 (Tenn. 1999).
                             I. NEWLY DISCOVERED EVIDENCE

        At the post-conviction hearing, the petitioner offered an undated letter written to her from
her accomplice, Walter Steve Smothers, which recanted the portion of his trial testimony that
implicated the petitioner. However, at the post-conviction hearing, Smothers recanted the statements
he made in the letter. He explained that the letter "served its purpose . . . to get a ride. I ain't ever
getting out of prison. I figured if somebody knew this, I might get a chance to come to court, see
the countryside."

        The post-conviction court properly rejected the petitioner’s “newly discovered evidence.”
Firstly, recanted testimony amounts to no more than a request to relitigate the sufficiency of the
evidence at trial and is not a proper subject of post-conviction relief. Charles Haynes v. State,
C.C.A. No. 01C01-9803-CC-00142, 1999 WL 126661, at *2 (Tenn. Crim. App. filed March 11,
1999, at Nashville), perm. to app. denied (Tenn. 1999) (citations omitted). Secondly, at the post-
conviction hearing Smothers affirmed his trial testimony and denied the truth of the facts set forth
in the letter. This issue is without merit.


                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Petitioner asserts she received ineffective assistance of trial counsel due to their failure to
object to an incomplete aggravating circumstance reported by the jury. After our examination of
the record, we conclude petitioner is not entitled to relief on this issue.

A. Standard of Review

        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, 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).

        In order to establish prejudice, the petitioner must establish a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct

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falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).

         In reviewing counsel's conduct, a "fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S.
at 689, 104 S. Ct. at 2065. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. Burns, 6 S.W.3d at 461. 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. Id. The burden of establishing that the evidence preponderates otherwise is on
petitioner. Henley, 960 S.W.2d at 579.

B. Analysis

        At the conclusion of the sentencing hearing, the jury rejected the death penalty and imposed
life without the possibility of parole. The verdict form revealed that the jury found two aggravating
circumstances. The jury found that “[t]he murder was especially heinous and atrocious.” See Tenn.
Code Ann. § 39-13-204(i)(5). Also, the jury found that “[t]he murder was committed for the purpose
of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or
another.” See Tenn. Code Ann. § 39-13-204(i)(6). The trial judge recognized the difference
between language the jury wrote in finding the especially heinous aggravating circumstance and the
statutory language, and the following colloquy occurred:

       THE COURT: I notice that where you set out the aggravating circumstance number
       one that you do not have the entire aggravating circumstance written out. Is there
       some reason?

       JURY FOREMAN: Well, we just

       THE COURT: Was it intended to be that you found the entire circumstance there?

       JURY FOREMAN: Well, just what I've got written out.

       THE COURT: You've written here that you found that the murder was especially
       heinous and atrocious.

       JURY FOREMAN: Yes, sir.




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       THE COURT: You have omitted that it was cruel, involved torture or serious
       physical abuse beyond that necessary to produce death. Is that what you intended for
       it to be?

       JURY FOREMAN: Yes, sir.

       THE COURT: All right, but then you have found that the second aggravating
       circumstance there in its entirety is correct.

       JURY FOREMAN: Yes, sir.

       THE COURT: Based upon that you fixed a sentence of life imprisonment without
       the possibility of parole. Have I read it correctly?

       JURY FOREMAN: That's correct.

See Harris, 989 S.W.2d at 313-14.

        At the post-conviction hearing, the petitioner’s trial attorneys testified that they made a
conscious tactical decision not to object to the incomplete aggravating circumstance. They testified
that had they objected, the trial court would have simply sent the jury back to make a complete
finding. Accordingly, they thought that raising the issue on direct appeal was the best course of
action.

        Tactical decisions by counsel are generally not proper subjects of post-conviction relief.
Henley, 960 S.W.2d at 579. Regardless, we conclude the petitioner failed to prove prejudice. On
direct appeal, the Supreme Court of Tennessee noted that the petitioner advanced no specific
argument demonstrating that the jury grossly abused its discretion of imposing a sentence of life
without the possibility of parole simply because the jury relied upon the incomplete aggravating
circumstance. Harris, 989 S.W.2d at 317. We similarly conclude in this post-conviction matter that
petitioner has failed to establish a reasonable probability that the sentence would have been any
different had counsel objected and the jury redeliberated. See. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. This issue is without merit.




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                                                   CONCLUSION

        We conclude that (1) the petitioner’s claim of newly discovered evidence fails, and (2) the
petitioner has failed to demonstrate that she received ineffective assistance of counsel. Accordingly,
the judgment of the post-conviction court is affirmed.1

                                                                   ___________________________________
                                                                   JOE G. RILEY, JUDGE




         1
            The petitioner raised several other issues in the post-conviction court, including failure of the state to reveal
prior to trial its complete plea agreem ent with co-defe ndant Sm others; failure of counsel to call co-defendant Ramsey
as a witness at trial; failure of counsel to properly consult with petitioner; failure of counsel to properly consider
petitioner’s mental status at the time of the trial; and failure of counsel to make a closing argument during the pena lty
phase of the trial. We agree with the post-conviction court that petitioner failed to establish any entitlement to relief
on these g round s.

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