        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                            FILED
                           AT KNOXVILLE
                                                           October 7, 1999

                        AUGUST 1999 SESSION               Cecil Crowson, Jr.
                                                         Appellate Court Clerk




GARY LEN ROLLINS,           *    C.C.A. # 03C01-9808-CR-00296

           Appellant,       *    KNOX COUNTY

VS.                         *    Honorable Ray L. Jenkins, Judge

STATE OF TENNESSEE,         *    (Post-Conviction/Aggravated Rape)

           Appellee.        *



FOR THE APPELLANT:               FOR THE APPELLEE:

LESLIE M. JEFFRESS               PAUL G. SUMMERS
P. O. Box 2664                   Attorney General & Reporter
Knoxville, TN 37901
                                 MICHAEL J. FAHEY, II
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 RANDALL EUGENE NICHOLS
                                 District Attorney General

                                 G. SCOTT GREEN
                                 Assistant District Attorney
                                 P. O. Box 1468
                                 Knoxville, TN 37901-1468




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                      OPINION

       The petitioner, Gary Len Rollins, appeals the trial court’s dismissal of his

petition for post-conviction relief. The petitioner contends that the trial court

erred in dismissing his petition on the following grounds:

       (1) The indictment in his case was constitutionally defective
           because it did not allege a specific mens rea.
       (2) The petitioner received ineffective assistance of counsel at trial
           for counsel’s failure to depose a dying defense witness and
           failure to move for sanctions in response to “coached”
           testimony.


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



                                   Procedural History

       On July 9, 1992, the petitioner was convicted of the aggravated rape of

his two-year-old son and was sentenced to fifteen years in prison. On January 9,

1995, the conviction and sentence were affirmed on direct appeal. See State v.

Gary Rollins, Sr., No. 03C01-9308-CR-00250 (Tenn. Crim. App. filed January 9,

1995, at Knoxville). Subsequently, the petitioner filed a petition seeking post-

conviction relief which the trial court denied, after an evidentiary hearing, on July

8, 1998. From this denial, the petitioner now appeals.



                                       ANALYSIS

                                  Defective Indictment

       The petitioner has relied exclusively upon the holding of a panel of this

Court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.

filed June 25, 1996, at Nashville), rev’d., 954 S.W.2d 725 (Tenn. 1997), to assert

that his indictment was insufficient and defective. As acknowledged by

petitioner, after the filing of the instant petition but before the trial court’s ruling,

the Tennessee Supreme Court reversed the Hill decision in State v. Hill, 954

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S.W.2d 725 (Tenn. 1997). While that decision involved indictments after the

Sentencing Reform Act of 1989, its analysis extends to indictments under the

1979 Act as well. See Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998). The

indictment in the instant case and that in Dykes are substantially similar.

Therefore, we conclude the indictment is not defective.



                         Ineffective Assistance of Counsel

       Next, the petitioner contends that his trial counsel was ineffective for

failing to depose a dying defense witness and failing to move for “some type of

sanction” in response to the coached testimony of a trial witness. 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. See Strickland, 466 U.S. at 687; 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).



       Further, the petitioner’s burden of proof in all post-conviction cases filed

after May 10, 1995, is by clear and convincing evidence, see Tenn. Code Ann. §

40-30-210(f), and reviewing courts must indulge a strong presumption that

counsel’s conduct falls within the range of reasonableness and must evaluate

the performance from counsel’s perspective at the time of the alleged error, see

Strickland, 466 U.S. at 695. The petitioner must show that there is a reasonable

probability that but for counsel’s error, the result of the proceeding would have

been different.

       Finally, the trial judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. See Butler,

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

1995). The trial court’s findings of fact are afforded the weight of a jury verdict,

and this Court is bound by the trial court’s findings unless the evidence in the

record preponderates against those findings. See 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. See Henley, 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. See Henley, 960 S.W.2d at 579; Black, 794

S.W.2d at 755. The burden of establishing that the evidence preponderates

otherwise is on the petitioner. See Henley, 960 S.W.2d at 579; Black, 794

S.W.2d at 755.



       Petitioner first asserts that trial counsel was ineffective in his failure to

depose a potential defense witness before that witness died, admittedly,

unexpectedly. Regarding this failure, the trial court at the evidentiary hearing

heard and accredited testimony from petitioner’s trial counsel and made the

following finding:

       Now it boils down to clairvoyance. Was it ineffective for Mr. Talman
       to anticipate the imminent death of Mr. Knuckles when the
       petitioner/defendant did not, even though much closer to him?
       Now consider further the fact that even if deposed what would be
       the efficacy of that testimony, if admitted, when shown that all he
       could testify to would be that if present all the time the defendant
       feels is of important, he saw or heard nothing. This may place this
       in proper [perspective]. The issue is without merit. . . .



       Petitioner has failed to demonstrate any error in the trial court’s reasoning

or conclusion. The petitioner acknowledged that the witness died unexpectedly


                                          -4-
and yet would argue that this Court hold trial counsel ineffective for failing to

foresee the death. Further, the efficacy of the witness’ testimony is dubious: (1)

the witness’ testimony would not have been that the offenses did not occur, but

rather, in a context of an alibi defense, that he simply did not see them occur,

and (2) some similiar testimony was already introduced through alternate

witnesses. Accordingly, we conclude that the petitioner has failed to

demonstrate that his trial counsel was ineffective and that prejudice resulted.



       Second, petitioner argues that trial counsel was ineffective in failing to

make a motion for sanctions in response to allegedly “coached” testimony at trial.

Trial counsel vigorously cross-examined the “coached” witness at trial in front of

the jury as well as raising the issue on direct appeal. Failure to make a motion

for sanctions simply does not constitute ineffectiveness when trial counsel

pursued the reasonable strategy of exposing the witness before the jury by

cross-examination. Further, it is entirely unclear what prejudice the petitioner

even alleges. Therefore, we conclude that trial counsel was not ineffective.



       Accordingly, we conclude, on both ineffectiveness claims, that the

evidence does not preponderate against the trial court’s findings.



                                   CONCLUSION

       The judgment of the trial court is AFFIRMED.




                                           ______________________________
                                           JOHN EVERETT WILLIAMS, Judge

CONCUR:




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_______________________________
JOSEPH M. TIPTON, Judge




_______________________________
ALAN E. GLENN, Judge




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