            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            JANUARY 1999 SESSION
                                                          March 11, 1999

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
CHARLES HAYNES,                     )
                                    )    C.C.A. NO. 01C01-9803-CC-00142
            Appellant,              )
                                    )    HICKMAN COUNTY
VS.                                 )
                                    )    HON. CORNELIA A. CLARK,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
            Appellee.               )    (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:


JUDSON W. PHILLIPS                       JOHN KNOX WALKUP
315 Deaderick St., Suite 2395            Attorney General & Reporter
Nashville, TN 37238-2395
      (On Appeal)                        DARYL J. BRAND
                                         Asst. Attorney General
                                         Cordell Hull Bldg., 2nd Fl.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243-0493

                                         RON DAVIS
                                         District Attorney General
                                         P.O. Box 937
                                         Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION



              The petitioner was indicted by the Hickman County grand jury for first-

degree murder. The petitioner’s first trial resulted in a hung jury. At his second trial, he

was found guilty by a jury of the indicted charge and sentenced to a term of life in prison.

On direct appeal, the petitioner’s conviction was affirmed. The petitioner subsequently

filed a petition for post-conviction relief. After a hearing, the post-conviction court denied

the petition. The petitioner now appeals and contends that he did not receive the

effective assistance of counsel and that newly discovered evidence exists that would

entitle him to a new trial. After a review of the evidence and the applicable law, we find

no merit to the petitioner’s contentions and thus affirm the lower court’s denial of his

petition for post-conviction relief.



              The petitioner’s conviction stemmed from the murder of an inmate at the

Turney Center correctional facility. The proof at trial established that the petitioner and

his cellmate, Nathaniel Fleming, approached a newly transferred inmate, Alton Hunter,

and while the petitioner held Mr. Hunter, Mr. Fleming stabbed Mr. Hunter once in the

neck and once in the chest. After the stabbing, the petitioner and Mr. Fleming hid the

weapon under a nearby building and left the area. Mr. Hunter managed to stagger to a

nearby correctional officer but he died en route to the hospital. At trial, the main witness

for the prosecution was an inmate, Thomas Mitchell, who claimed to have seen the entire

incident from his cell window. Mr. Mitchell positively identified the petitioner and Mr.

Fleming as the assailants who killed Mr. Hunter.



              Under the Post-Conviction Procedure Act of 1995, the petitioner has the

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

evidence. T.C.A. § 40-30-210(f). Furthermore, the factual findings of the trial court in


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hearings “are conclusive on appeal unless the evidence preponderates against the

judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



              The petitioner now claims that he received the ineffective assistance of

counsel. He contends that his attorneys failed to adequately investigate the facts of and

the witnesses to the case, that his attorneys’ cross-examination of the prosecution’s star

witness was hindered by the trial court’s denial of a request for a copy of the transcript

of the first trial, and that they failed to call a witness with exculpatory information to the

witness stand.



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney are within the range of competence demanded of attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective assistance of counsel, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and that this

performance prejudiced the defense. There must be a reasonable probability that but for

counsel’s error the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422

(Tenn. Crim. App. 1985).



              In the case at bar, the petitioner first contends that his attorneys failed to

adequately investigate the facts of the case and witnesses to the case. However, the

proof at the post-conviction hearing showed that the petitioner’s attorneys went to Turney

Center and interviewed possible witnesses. The attorneys requested, and received, a

private investigator who videotaped and took pictures of the view from Mr. Mitchell’s cell

window while two men stood in the same area where the petitioner and Mr. Fleming


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supposedly stood during the commission of the crime.                The attorneys used this

videotape and the pictures at trial in an effort to discredit Mr. Mitchell’s identification. The

attorneys also procured Mr. Mitchell’s infirmary records on the night of the incident in an

effort to discredit his testimony. As Mr. Mitchell had testified that after witnessing the

murder he began to have stomach problems and went to the infirmary, the petitioner’s

attorneys tried to use that information to help prove that Mr. Mitchell was having problems

with his ulcer as a result of drinking alcohol. The petitioner’s attorneys tried to establish

that Mr. Mitchell had been drinking earlier that day and, as a result, was unable to make

a reliable identification of the assailants. At the post-conviction hearing, Ms. Story, one

of the petitioner’s attorneys, testified that she had worked “very diligently” on this case.

In light of the foregoing, the petitioner has failed to prove by clear and convincing

evidence that his attorneys did not adequately investigate the facts and circumstances

of his case or that the evidence preponderates against the post-conviction court’s finding

that he received the effective assistance of counsel. As such, this contention is without

merit.



               The petitioner further contends that he received the ineffective assistance

of counsel because his attorneys’ cross-examination of Mr. Mitchell was hindered by the

trial court’s denial of their request for a copy of the transcript of the first trial. The State

contends that this issue is waived as it was previously determined in the petitioner’s direct

appeal. However, absent waiver, this issue is without merit. At the post-conviction

hearing, Ms. Story testified that although she did not have the actual transcript of the first

trial, she did have the audio tapes of the first trial from which typed transcripts of the most

crucial testimony were made. Ms. Story also testified that even if the actual trial transcript

had been available to her, she doubted that it would have resulted in a different verdict.

Based on the foregoing, the petitioner has failed to prove by clear and convincing

evidence that his attorneys’ representation fell below an objective standard of


                                               4
reasonableness or that the result of the proceeding would have been different. As such,

this contention is without merit.



              The petitioner also contends that he received the ineffective assistance of

counsel because his attorneys did not call Willie Wilson, an alibi witness, to the witness

stand. At the post-conviction hearing, Ms. Story testified that she did not call Mr. Wilson

to the stand because his testimony was not as stable as the other alibi witnesses’

testimony and she did not want to put several witnesses on the stand who would say

essentially the same thing. In addition, she testified that she did not want to give the

district attorney the chance to expose any inconsistencies in the alibi witnesses’ stories,

and she wanted to use the alibi witnesses with the least criminal history. Ms. Story also

believed that Mr. Wilson had knowledge of a possible motive behind the murder. Ms.

Story admitted that her decision not to call Mr. Wilson as a witness was a tactical decision

based upon the facts and circumstances surrounding the case.



              This Court has held that it should not second-guess trial counsel’s tactical

and strategic choices unless those choices were uninformed because of inadequate

preparation, Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be

deemed to have been ineffective merely because a different procedure or strategy might

have produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

App. 1980). The petitioner has failed to prove by a preponderance of the evidence that

his attorneys’ decision not to call Mr. Wilson as a witness was an uninformed choice

resulting from inadequate preparation. In addition, the petitioner has failed to prove that

had Mr. Wilson been called as a witness, the result of the trial would have been different.

Strickland, 466 U.S. at 668, 687-88, 692, 694. As such, this contention is without merit.



              The petitioner next contends that he is entitled to a new trial on the basis


                                             5
of newly discovered evidence, the recanted testimony of Thomas Mitchell. At the post-

conviction hearing, Mr. Mitchell testified that he had lied at trial, had been coerced by

correctional officers, and had received his information regarding the crime from those

officers. However, relief under the Post-Conviction Procedure Act is granted only for the

abridgement of a constitutional right. T.C.A. § 40-30-203. This Court has previously held

that recanted testimony “amounts to no more than a request to relitigate the sufficiency

of the evidence at trial, which a post-conviction proceeding may not be employed to do.”

George Massey v. State, No. 1121, Knox County (Tenn. Crim. App. filed November 5,

1987, at Knoxville); see also Jerry Dwaine Cammuse v. State, No. 01C01-9709-CR-

00440, Davidson County (Tenn. Crim. App. filed July 2, 1998, at Nashville)(on rehearing).

As a sufficiency of the evidence issue does not rise to the level of a constitutional claim,

the petitioner’s contention does not state a proper ground for post-conviction relief under

T.C.A. § 40-30-203.



               In sum, we find no merit to the petitioner’s claim of ineffective assistance

of counsel or his request for a new trial on the basis of newly discovered evidence.

Accordingly, we affirm the trial court’s dismissal of the petitioner’s post-conviction petition.




                                                    ______________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
THOMAS T. W OODALL, Judge


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