        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON                FILED
                         AUGUST SESSION, 1997          December 2, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

KENNETH LEE CLAY,                )   C.C.A. NO. 02C01-9610-CC-00323
                                 )
           Appe llant,           )
                                 )   LAKE COUNTY
                                 )
V.                               )
                                 )   HON. JOE G. RILEY, JR., JUDGE
STATE OF TENNESSEE,              )
                                 )
           Appellee.             )   (POST-C ONVIC TION)




FOR THE APPELLANT:               FOR THE APPELLEE:

LANCE E. WEBB                    JOHN KNOX WALKUP
P.O. Box 26                      Attorney General & Reporter
Union City, TN 38261
                                 CLINTON J. MORGAN
                                 Assistant Attorney General
                                 2nd Floor, Cordell Hull Building
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 C. PHILLIP BIVENS
                                 District Attorney General

                                 JOHNNY VAUGHN
                                 Assistant District Attorney General
                                 115 Ea st Marke t
                                 P.O. Box E
                                 Dyersburg, TN 38025




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       Petitioner, Kenneth Lee Clay, appeals the trial court’s denial of his petition

for post-conviction re lief. On July 20, 1994, Petitioner was convicted of two

counts each of burg lary an d theft o f prope rty follow ing a ju ry trial in the C ircuit

Court of Lake County. He was sentenced to four (4) years for each co unt, with

counts one (1) and tw o (2) to be served concurrently and counts three (3) and

four (4) to be served concurrently. Counts one (1) and two (2) were to be served

consecu tive to the s enten ces im pose d in counts three (3) and four (4), for a total

sentence of eight (8) years. Petitioner c ontend s that he w as den ied his Sixth

Amendment right to the effective assistance of counsel because of Counsel’s: (1)

failure to present an alibi de fense; (2 ) failure to exercise peremptory challenges

during voir dire of the jury; (3) deprivation of Petitioner’s right to testify; and (4)

failure to appeal the issue of consecutive sentencing. We affirm the judgment of

the trial cou rt.



       In determining whether counsel provided effective assistance at trial, the

court must decide whether counsel’s performance was within the range of

competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel 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

U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper v. State, 849 S.W.2d



                                           -2-
744, 747 (T enn. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To

satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,

but for cou nsel’s unreason able error, the fact finder w ould have had re ason able

doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable

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 cou nsel’s action s, this co urt sho uld no t use th e ben efit

of hindsight to second-guess trial strategy and criticize cou nsel’s tactic s. 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.



      The Petitioner called trial counsel to testify at the evidentiary hearing.

Counsel was ap pointed to repres ent Petition er for cha rges of b urglary an d theft

arising out of two separate incidents. One of the burglaries was committed on

January 6, 1994, and the second burglary occurred on Feb ruary 20, 1 994. Bo th

of the theft charges were felonies because the amount stolen was over five

hundred dollars ($500.00). The first jury trial on these charges against Petitioner

ended in a mistrial, b ut he wa s convicte d of all cha rges at the secon d trial.



      Counsel stated that he initially met with Petitioner briefly on the day he was

appointed, and that he and his investigator met with the Petitioner on later dates.

During those meetings, they discussed Petitioner’s defense and any alibi

witnesses he named.        A plea offer was made to Petitioner, and both the

investigator and coun sel talked to Petitioner re garding the terms and

                                          -3-
ramifications of the offer. The offer made by the District Attorney’s office was four

(4) years fo r each charg e, all sentences to run c oncu rrently b ut con secu tive to all

prior sentences. Coun sel did not rec all any other offers be ing made to Petitioner.

Trial counsel obtained c opies of statements given to the police regarding the

burglaries. From the time counsel was appointed to the time of trial, he and h is

investigato r met with the Petition er severa l times.



       The alibi witness es Petition er nam ed were subpo enaed for the first trial,

and counsel spoke with each of them. All three of the w itness es co uld not be of

any help to Petitioner because of the time frame in which the burglary occurred.

W hile all of them had been with the Petitioner earlier in the evening on the night

of the burglary, they did not kn ow an ything o f his wh ereab outs fro m tha t time u ntil

the next day. Counsel decid ed tha t the witn esse s wou ld not h elp Pe titioner’s

defense, but would hurt him and did not call them to testify. Because of this,

these witnes ses w ere no t subp oena ed for th e sec ond tria l. Counsel discussed

with Petitioner his right to testify at both trials, but recommended that he not

testify due to his prior record. The final decision was left to the Petitioner, and he

chose not to testify on both occasions.



       Counsel stated that jury selection was very important in both trials, and that

he exerc ised three of his pere mptory challeng es at the s econd trial. Wh ile one

of the members of the jury which convicted Petitioner had previously worked at

the store that was robbed, counsel personally knew the juror and “didn’t feel like

that would h ave ma ttered to he r.” Wh ile cou nsel co uld not specifically recall if he

asked the juror if she could be unbiased, the Petitioner did not object to her being

a juror. When questioned regarding his cross-examination of the Petitioner’s live-

                                            -4-
in girlfriend, whose testimony at the second trial contradicted her testimony from

the first trial, counsel stated that he cross-examined her and “tried at some point

to get her o n line with the secon d burgla ry . . . because she had to me conveyed

a wrong statement to the jury. I can’t remember exactly what it was but I thought

she had c orrected it, but I doubt if the jury . . . knew w hat was ha ppening.”



      Lloyd Price, a purported alibi witness for the Petitioner, testified that he was

subpoenaed to the first trial, but he did not rem emb er talkin g to Pe titioner’s

coun sel. Price c ould n ot reca ll being with Pe titioner on January 6, 1994. He

stated tha t he had been d rinking tha t night.



      Petitioner testified that h e could n ot recall m eeting w ith his trial counsel, but

he did meet with the investigator. He gave the investigator the names of potential

alibi witnesses for the first burglary of Janu ary 6, 1994. At another meeting, the

investigator discussed the implications of the plea agreement offer with him, but

he did not understand what he would have been pleading guilty to as counsel did

not explain it to him. Petitioner later discussed anothe r plea ag reeme nt offer with

the investigator in which he was offered a 1.5 year senten ce for a guilty plea, but

it was not p roperly exp lained to h im.



       At the evidentiary hearing, Petitioner recalled tha t his alibi witnesses we re

subpoenaed for the first trial, but that counsel would not call them to testify

because counsel said, “[T]hey’ll hurt you more than they can help you.”

Petitioner did not ask counsel to subpoena these witnesses for the se cond trial.

Petitioner stated that wh ile he d id not fully understand the plea agreement offers,

he would not have pled guilty regardless what the offer wo uld ha ve bee n. W hile

                                           -5-
Petitioner claimed he wanted to testify at trial, he was advised that his criminal

record w ould be brough t up and felt pressu red not to testify.



       Petitioner recalled the juror who had worked at Piggly Wiggly, the site of

the burglary. He stated that he mentioned this fact to trial counsel, but counsel

replied that she would be a good juror. Petitioner never specifically requested

counsel to strike the wom an from the jury pane l. Follow ing the convic tion in the

second trial, Petitioner te stified that trial coun sel ne ver con sulted with him

regarding any possible issues for appeal, nor did he specifically suggest any

issues fo r appea l.



       Upon review of the record, including Petitioner’s presentence report and

transcript from h is second trial, this court finds that the Petitioner was not denied

the effective assistance of counsel. In a written memorandum, the trial judge

found that the Petitioner had failed to establish that he was deprived of effective

assistance of counsel. We conclude that the evidence does not preponderate

agains t these find ings of the trial court.



       In his brief, P etitione r also re fers to c ouns el’s failur e to ad equa tely prepare

for trial. From the testimony of trial coun sel, his pre paration was su fficient to

provide Petitioner with effective representation. As the judge correctly pointed

out in his order denying the petition, there has been no showing that counsel

could have d one a nything else in tr ial prep aration . On th e issue of cou nsel’s

failure to call alibi witnesses, counsel interviewed and subpoenaed all witnesses

which Petitioner id entified. Furthermore, the alibi witness which Petitioner called

to testify at the post-conviction hearing could not recall seeing Petitioner at all on

                                             -6-
the night in question and had been drinking that night. On the issue of alibi

witnesses, a petitione r is not entitled to any relief “unless he can produce a

material witness who (a) could have been found by a reasonable investigation

and (b) would have testified favora bly in support of his de fense if called.” Black

v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990). Petitioner has clearly

not me t that require ment.



       Petitioner also co ntend ed the cross -exam ination of one of the S tate’s

witnesses, his live-in girlfriend, was an example of ineffective assistance of

coun sel. While Petitioner claims th at her testimony at the second trial was

inconsistent with that of the first trial, Petitioner failed to provide this cou rt a

transcript of the girlfriend ’s testimo ny from th e first trial. While it does appear

from counsel’s cro ss-examination during the second trial that there were some

contradictions in the g irlfriend’s testim ony, co unse l did atte mpt to impe ach h er in

this regard and to clarify the testimony at the second trial. Petitioner has failed

to show any prejudice.



       Petitione r’s contentions reg arding the failure to exe rcise perem ptory

challenges also are without merit. Petitioner and counsel specifically discussed

the potential juror’s prior employment at the store that was burglarized, and

counsel told Pe titioner th at he b elieved she w ould b e a go od juror. Counsel’s

decision was based upon his personal knowledge and was made as a tactical

decision. This court shou ld not s econ d-gue ss trial co unse l’s tactica l and s trategic

choices unless those choices were uninformed because of inadeq uate

preparation. Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82). In any event,

Petitioner did not specifically request that this juror be challenged.

                                            -7-
       On the issue of his failure to testify, Petitioner contends that counsel

impro perly insisted that he not testify. There were two se parate trials in th is

matter, and on both occ asions P etitioner wa s advised of his right to testify and

the fact that his prior criminal record would probably be brought up by the State

for impe achm ent pu rpose s.      On b oth oc casio ns, Pe titioner m ade th e final

decision not to te stify, and coun sel’s ad vice that Petitioner not testify was a

tactical choice. While a different strategy might have been employed by counsel

in this regard, counsel may not be deemed to be ineffective for this reason alone.

See William s v. State, 599 S.W .2d 276 , 280 (T enn. C rim. App . 1980).



       The final claim o f Petitioner is that counsel failed to raise the issue of

consecu tive sente ncing in his dir ect ap peal. T here w as little te stimony elicited

from coun sel on this m atter at th e pos t-conv iction h earing , but it is clear from the

record that consecutive sentences are justified in Petitioner’s case.              At the

sentencing hearing, Petitioner was found to be (1) a professio nal criminal who

knowin gly devoted himself to criminal acts as a major source of livelihood, and

(2) an offender w hose reco rd of crimina l activity was extensive. Tenn. Code Ann.

§ 40-35-115(b)(1) and (2 ). In add ition, Pe titioner’s pre-sentence report indicated

that he has a nearly non-existent record of employment since his eighteenth

birthday.    As trial counsel felt Petitioner met the criteria for consecutive

sentencing, counsel did not raise it as an issue on appeal.                 There is no

requirement that counsel raise a non-frivolous issue on appeal if, as a matter of

professional judgment, counsel feels the issue should not be addres sed. See

Porte rfield v. State, 897 S.W .2d 672, 678 -79 (Tenn . 1995) cert. denied, 116 S.C t.

385 (19 95); State v. Draper, 800 S.W .2d 489 , 498 (T enn. C rim. App . 1990).




                                            -8-
       A thorough review of the record reflects that the trial court properly denied

Petitione r’s post-co nviction pe tition. W e affirm the judgm ent of the tria l court.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
DAVID G. HAYES, Judge


___________________________________
JERRY L. SMITH, Judge




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