            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    Assigned on Briefs May 21, 2002

               GARY EUGENE ALDRIDGE v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Hickman County
                            No. 00-5066C-II   Timothy L. Easter, Judge



                      No. M2001-02452-CCA-R3-PC - Filed November 19, 2002


The petitioner, Gary Eugene Aldridge, was convicted by a jury in the Circuit Court of Hickman
County of one count of aggravated kidnapping, two counts of aggravated rape, one count of rape,
and two counts of simple assault. The trial court sentenced the petitioner to an effective sentence
of sixty years incarceration in the Tennessee Department of Correction, followed by an effective
consecutive sentence of seventeen months and twenty-nine days in the local workhouse. After an
unsuccessful appeal of his convictions, the petitioner timely filed a petition for post-conviction relief,
alleging, among other grounds, ineffective assistance of counsel. The petitioner now brings this
appeal challenging the post-conviction court’s denial of his petition. After reviewing the record and
the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Edward S. Ryan, Nashville, Tennessee, for the appellant, Gary Eugene Aldridge.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and Ronald L. Davis, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                      I. Factual Background
               On May 9, 1997, the petitioner was convicted by a jury of one count of aggravated
kidnapping, two counts of aggravated rape, one count of rape, and two counts of simple assault. The
convictions stem from a series of incidents in which the petitioner beat and raped his wife, Etta Mae
Aldridge.1 The trial court imposed an effective sentence of sixty years confinement in the Tennessee
Department of Correction, followed by an effective consecutive sentence of seventeen months and
twenty-nine days in the local workhouse. On direct appeal, this court affirmed the convictions and

        1
            At the time of the rapes, the petitioner and his wife were separated and Mrs. Aldridge had filed for divorce.
sentences, and the Tennessee Supreme Court denied permission to appeal. State v. Gary Eugene
Aldridge, No. 01C01-9802-CC-00075, 1999 Tenn. Crim. App. LEXIS 853 (Nashville, Aug. 19,
1999), perm. to appeal denied, (Tenn. 2000).

                  The petitioner timely filed a pro se petition for post-conviction relief, alleging
nineteen grounds for relief. On August 31, 2000, the post-conviction court entered an order
appointing counsel and denying the majority of the petitioner’s claims as waived for failure to
present the claims for determination on direct appeal. However, the post-conviction court found the
petitioner’s claim of ineffective assistance of counsel to be a colorable claim for relief. An amended
petition was subsequently filed and, on February 8, 2001, the post-conviction court held an
evidentiary hearing at which the petitioner and his trial counsel testified. At the conclusion of the
testimony, the post-conviction court took the matter under advisement and ordered the parties to
submit briefs before the court rendered a decision. In his final argument to the post-conviction court,
the petitioner asserted only two grounds in support of his claim of ineffective assistance of counsel.
First, the petitioner argued that trial counsel denied the petitioner his right to testify at trial. Second,
the petitioner argued that trial counsel failed to adequately investigate the petitioner’s case and failed
to interview and call material witnesses.

                On May 3, 2001, the post-conviction court entered an order setting forth detailed
findings of fact and conclusions of law, denying the petition for post-conviction relief. Specifically,
the post-conviction court found that the petitioner failed to establish by clear and convincing
evidence that trial counsel deprived him of his right to testify. The post-conviction court further
found that the petitioner failed to demonstrate any prejudice resulting from trial counsel’s alleged
failure to interview or call witnesses. The petitioner appealed the denial of his petition for post-
conviction relief.

                                            II. Analysis
                In a post-conviction proceeding, the petitioner bears the burden of proving the
grounds raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)
(1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel presents a mixed
question of law and fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
As such, the post-conviction court’s findings of fact are entitled to a presumption of correctness
unless the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001). The credibility of the witnesses and the weight and value to be afforded their testimony are
questions to be resolved by the post-conviction court and, on appeal, the burden is on the petitioner
to prove that the evidence preponderates against the post-conviction court’s findings. Henley v.
State, 960 S.W.2d 572, 579 (Tenn. 1997). However, a post-conviction court’s conclusions of law,
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial, are
subject to a purely de novo review with no presumption of correctness. Fields, 40 S.W.3d at 458.




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                 When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient
and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the range
of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To establish prejudice, the petitioner must show that “there is 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. Moreover,
                 [b]ecause a petitioner must establish both prongs of the test, a failure
                 to prove either deficiency or prejudice provides a sufficient basis to
                 deny relief on the ineffective assistance claim. Indeed, a court need
                 not address the components in any particular order or even address
                 both if the [petitioner] makes an insufficient showing of one
                 component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

                             A. Failure to Locate and Interview Witnesses
                 The petitioner first alleged that trial counsel was deficient in failing to locate and
interview essential defense witnesses. Specifically, the petitioner argued that trial counsel failed to
interview Gerald Freeland, Dawn Godwin,2 and Jerry Wayne Marrs, despite the fact that the
petitioner gave counsel their names and addresses. However, at the evidentiary hearing, the
petitioner testified that he could only speculate as to the content of the witnesses’ testimony had they
been called to testify at trial.

                 At the evidentiary hearing, trial counsel conceded that the petitioner gave her the
name and address of the victim’s brother, Gerald Freeland, who allegedly had information regarding
an affair the victim had while visiting his home in Arkansas prior to the commission of the offenses.
Counsel testified that she made several attempts to contact Freeland with no success. Moreover,
counsel testified that due to limited resources, the public defender’s office had only one investigator,
and counsel did not ask the court for funds to hire an additional investigator. However, according
to counsel, Freeland’s testimony was neither relevant to the petitioner’s defense, nor likely to have
been admissible under the rape shield law.

                 Counsel also conceded that she did not interview the victim’s oldest daughter, Dawn
Godwin, who allegedly failed to call 911 on the night her mother was kidnapped and raped. Counsel
testified that she subpoenaed Godwin, but Godwin had left town and was “not to be found.” Counsel
further asserted that, even if Godwin had been available to testify, she was a “two-edged sword”
because there was evidence that Godwin was having a sexual relationship with the petitioner.
Finally, counsel could not recall interviewing Jerry Wayne Marrs. However, counsel testified that


       2
           In the record, this witness is also referred to as Dawn God ner.

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if Marrs had relevant information in support of the petitioner’s defense, she would have called him
to testify at trial.

                 The post-conviction court found that the petitioner “failed to demonstrate any
prejudice resulting from [trial counsel’s] alleged failure to interview or call the witnesses.” We
agree. “When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). A petitioner
is not entitled to relief on this ground “unless he can produce a material witness who (a) could have
been found by a reasonable investigation and (b) would have testified favorably in support of his
defense if called.” Id. at 758. Neither the post-conviction court nor this court can speculate as to
what a witness’s testimony might have been at trial. Id. at 757. At the evidentiary hearing, only the
petitioner and his trial counsel testified. The petitioner failed to present the favorable testimony of
these “material” witnesses. Moreover, on cross-examination, the petitioner offered no proof as to
what the witnesses’ testimony would have been if they had been called to testify. Therefore, even
assuming that counsel was deficient in failing to interview and call these potential witnesses to
testify, the petitioner has failed to show how he was prejudiced by this deficiency. This issue is
without merit.

                           B. Denial of the Petitioner’s Right to Testify
                Next, the petitioner contends that counsel deprived him of his right to testify in his
own behalf. At the evidentiary hearing, the petitioner testified that when he asked counsel about
testifying, counsel responded that she was not going to call him to testify because “she didn’t have
[his] case prepared that way.” According to the petitioner, he wanted to testify “from day one” and
at no time did he knowingly and voluntarily waive his right to testify. The petitioner testified that
he did not sign a written waiver, nor did he waive his right on the record before the trial court.

                Counsel admitted that she strongly advised the petitioner not to testify, but contended
that the decision was ultimately his to make. According to counsel,
                I think he did want to testify, and most of my clients do want to
                testify, and that is their option, I can’t take it away from them. I
                would never, never did and never would tell someone that they could
                not testify. That’s not my role. My role is to counsel them as to what
                the impact of their testimony would be, and I did counsel [the
                petitioner] on that. . . . I counseled [the petitioner] that it would not
                be in his best interest to testify.
Counsel testified that, while the petitioner had a prior conviction for a crime against nature involving
his oldest daughter, counsel’s ultimate reason for advising the petitioner not to testify was the
petitioner’s “general personality and nature.” Counsel testified that she feared the petitioner would
be perceived by the jury as “arrogant” and that his testimony would hurt the credibility of the other
defense witnesses. On cross-examination, counsel denied telling the petitioner that he could not
testify because his testimony was inconsistent with the manner in which counsel had prepared the
defense.


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                 Counsel conceded that she did not have the petitioner sign a written waiver of his
right to testify, nor did she note on the record before the trial court that her client was waiving his
right to testify. As to the written waiver, counsel testified that it is “very disconcerting between an
attorney and client when you’re in the middle of a trial that holds his life in his hands and you’re
saying, ‘Here, sign this, you know, this is going to protect me later whenever you come back and say
I didn’t do a good job.’” However, counsel testified that when she believed a client’s waiver of his
right to testify was really an issue, she would so advise the court on the record. She did not do so
in the petitioner’s case because the petitioner did not seem “particularly disturbed about it.” Counsel
testified that she had no doubt that the petitioner knowingly waived his right to testify.

                The post-conviction court accredited the testimony of trial counsel that, although
counsel advised the petitioner not to testify, the petitioner ultimately made that decision. As
previously noted, the credibility of the witnesses and the weight and value to be afforded their
testimony are questions to be resolved by the post-conviction court. Henley, 960 S.W.2d at 579.
This court will not disturb the post-conviction court’s findings of fact unless the petitioner
demonstrates that the evidence preponderates against those findings. Id. at 578. The petitioner has
failed to do so in this case.

                In his brief, the petitioner urges this court to consider Momon v. State, 18 S.W.3d 152
(Tenn. 1999), even though Momon was decided after the petitioner’s trial. In Momon, our supreme
court held that “the right of a criminal defendant to testify in his or her own behalf is a fundamental
constitutional right . . . [that] may only be waived personally by the defendant.” Id. at 161. To
ensure that criminal defense attorneys do not unilaterally deprive their clients of this fundamental
right, the Momon court set forth procedural guidelines, requiring the defendant’s knowing,
voluntary, and intelligent waiver to be made on the record. Id. at 162, 174-75. However, Momon
has no retroactive effect. Id. at 162-63. Furthermore, even if Momon applied retroactively, “the
mere failure to follow these guidelines will not in and of itself support a claim for deprivation of the
constitutional right to testify if there is evidence in the record to establish that the right was otherwise
personally waived by the defendant.” Id. at 163. Although there is no record of the petitioner
waiving his right to testify, trial counsel testified at the evidentiary hearing that the petitioner
personally and knowingly waived this right upon the advice of counsel, and the post-conviction court
accredited counsel’s testimony. This issue is without merit.

                                        III. Conclusion
                Based upon the foregoing, the judgment of the post-conviction court is affirmed.




                                                          ___________________________________
                                                          NORMA McGEE OGLE, JUDGE


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