           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          FEBRUARY 1998 SESSION
                                                           June 9, 1998

                                                     Cecil W. Crowson
DALE MORRIS JENKINS,          *    C.C.A. # 01C01-9702-CC-00051 Clerk
                                                   Appellate Court

             Appellant,       *    MONTGOMERY COUNTY

VS.                           *    Hon. Robert W . Wedemeyer, Judge

STATE OF TENNESSEE,           *    (Post-Conviction)

             Appellee.        *




For Appellant:                     For Appellee:

Wade Bobo                          John Knox Walkup
129 South Third Street             Attorney General and Reporter
Clarksville, TN 37040
                                   Lisa A. Naylor
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   Cordell Hull Building, Second Floor
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Arthur F. Bieber
                                   Assistant District Attorney General
                                   204 Franklin Street, Ste. 200
                                   Clarksville, TN 37040




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Dale Morris Jenkins, appeals from the trial court's

denial of post-conviction relief. Convicted of first degree murder, the petitioner

received a sentence of life imprisonment for the 1991 murder of the victim, Florence

Ogburn. In this appeal of right, the single issue presented for our review is whether

the petitioner's trial counsel was ineffective.



              We find no error and affirm the judgment of the trial court.



              In February of 1991, the petitioner telephoned his mother and

indicated that he might have harmed the victim. A family member alerted the

authorities who, upon investigation, found the victim at her residence stabbed to

death. Officers found a meat fork in the petitioner's back pocket which medical

experts were later able to identify as the murder weapon. Arresting officers

described the petitioner as having bloodshot eyes, very sleepy, and intermittently

incoherent. He was splattered with blood. The petitioner claimed to have taken

prescription medicine and aspirin for several days prior to the murder and contended

that he could not recall stabbing the victim.



              After his conviction, the petitioner waived the motion for a new trial and

his right to appeal. In 1993, he filed this petition for post-conviction relief, asserting

as follows:

              (a)    the jury charge permitted a finding of guilt on a
              lower standard than that which the constitution allows;

              (b)     trial counsel was ineffective for failing to object to
              improper jury instructions on the burden of proof and the
              definition of premeditation;

              (c)    trial counsel was ineffective for failing to object to
              the lack of proof of an essential element of the offense;


                                             2
               (d)   trial counsel was ineffective for failing to develop a
               defense;

               (e)   trial counsel was ineffective for failing to appeal
               the conviction; and

               (f)   the evidence was insufficient to support a
               conviction for first degree premeditated and deliberate
               murder.

The petitioner also requested a delayed appeal. At the conclusion of the evidentiary

hearing, the trial court granted a delayed appeal and otherwise pretermitted the

claim of ineffective assistance of counsel. In the delayed appeal, the petitioner

argued that the evidence was insufficient and that his counsel was ineffective

because he made claims during opening statement that could not be established by

the proof. This court reversed the grant of a delayed appeal, refused to address the

claim of insufficient evidence, and remanded to the trial court for a full evidentiary

hearing on the post-conviction ineffective assistance of counsel claim. Dale M.

Jenkins v. State, C.C.A. No. 01C01-9405-CC-00156 (Tenn. Crim. App., at Nashville,

Apr. 13, 1995).



               At the conclusion of the post-conviction hearing, the trial court denied

relief. This appeal followed. A number of the issues raised in the original petition

were not asserted in this appeal as grounds for relief and, in consequence, have

been waived. See Ct. Crim. App. R. 10(b). The brief of the petitioner addresses

only the issue of ineffective assistance of counsel.



               The petitioner argues that his trial counsel was ineffective during and

after trial for having failed to notify the trial judge of "the difficulty he was having in

communicating with [the petitioner]." He also argues that his trial counsel was

ineffective for failing to perfect a direct appeal of his conviction.




                                              3
               In order for the petitioner to be granted relief on grounds of ineffective

assistance of counsel, he must establish that the advice given or the services

rendered were not within the range of competence demanded of attorneys in

criminal cases and that, but for his counsel's deficient performance, the result of his

trial would likely have been different. Strickland v. Washington, 466 U.S. 668

(1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).



               This court may not second-guess the tactical and strategic choices

made by trial counsel unless those choices are uninformed because of inadequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel may not

be deemed ineffective merely because a different procedure or strategy might have

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

1980). The reviewing courts must indulge a strong presumption that the conduct of

counsel falls within the range of reasonable professional assistance. Strickland, 466

U.S. at 690.



               The findings of fact made by the trial court are conclusive and will not

be disturbed on appeal unless the evidence contained in the record preponderates

against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988);

Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). The burden is on the

petitioner to prove his allegations by a preponderance of the evidence. McGee v.

State, 739 S.W.2d 789 (Tenn. Crim. App. 1987); Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1978).



               At the evidentiary hearing, the thirty-six-year-old petitioner testified that

at the time of the murder, he was taking Dilantin for seizures. The petitioner denied

that the drug caused confusion. He acknowledged that soon after his arrest he was


                                             4
evaluated and determined competent to stand trial but, within the next three months,

he began experiencing confusion and weakness:

              One night ... I fell down in the middle of the floor and just
              started seeing orange spots all over the wall. ... I tried to
              get up and I couldn't .... After then ... I just got weaker
              and weaker and weaker .... I couldn't do nothing but just
              lay there. I couldn't get up and walk. I couldn't see
              straight. I couldn't write a letter because I couldn't see
              the paper. I couldn't dial the telephone because I
              couldn't see it. I couldn't go to the bathroom. I had lost
              all functions. I don't know why.

The petitioner claimed that his condition persisted until several weeks after the

conclusion of his trial. He contended that during his pre-trial incarceration, he was

taunted by other inmates and placed in isolation. He maintained that he slept

constantly during this period of time and had no idea that six months had passed

before his trial began.



              The petitioner acknowledged his awareness that he would be tried for

first degree murder but claimed his general state of confusion prevented him from

assisting in the preparation of a defense. He testified that his trial counsel visited on

only three or four occasions for less than ten minutes each time. The petitioner also

claimed that he was not able to assist his counsel in preparation for the cross-

examination of witnesses and that he "went along with everything." He recalled that

three days after his conviction, his trial counsel asked if he wanted to appeal. He

remembered saying no but only did so because "I didn't have the slightest idea what

was going on .... [m]y mind was all messed up." The petitioner asserted that,

although he thought he had explained his confusion to the trial judge at the hearing

on the waiver of appeal, "I couldn't communicate to nobody."



              The petitioner testified that his confusion stemmed from medication he

was given while incarcerated. He asserted that he had believed that he was taking


                                            5
twice as much Dilantin or an additional medication not originally prescribed. The

petitioner also explained that a doctor indicated that Dilantin had built up in his

system, due to his inactivity, and had become toxic. He testified that he "started

coming around" after he stopped taking the medication. There was no expert

testimony to support his claims.



               David Howington, an inmate and trusty at the Montgomery County jail,

recalled that he had taken food to the petitioner three times per day during his term

of isolation. He asserted that the petitioner was "crazy" and was taunted and placed

in isolation only after he had thrown urine and feces on other prisoners. He

remembered that the petitioner was "really incoherent .... He'd mumble [and] his

hand would be shaking ...." On seeing the petitioner several years after the

conviction, Howington concluded that the petitioner's condition had changed

dramatically: "You can talk to him now. He understands you. He talks."



               The petitioner's trial counsel testified that he visited the petitioner in jail

eight to twelve times prior to trial. He recalled the petitioner as being "skinny, almost

anorexic. His personal hygiene was poor. ... He has talked today more than he did

the whole time that I talked to him preparing for trial. He was not talkative. He

appeared to be very depressed, very subdued." Trial counsel remembered that the

only helpful information the petitioner provided to him before trial concerned his

seizures and a reference to his childhood, which trial counsel described as

"traumatic." He recalled that the petitioner's attitude had been fatalistic during the

months preceding trial and remembered that during pre-trial discussions with the

petitioner, "he would seem to get frustrated with me and say look man[,] I broke the

rules[. C]an't we just get on with this. ... It was almost why are you bothering me

with all this trial stuff, they got me."


                                              6
              Trial counsel testified that the petitioner had undergone a mental

evaluation in an effort to develop a mental defense and was determined competent

to stand trial. Trial counsel stated that the petitioner's mother, who provided some

medical records, testified at trial. He recalled that the problems the petitioner

experienced with the jail's general population was due to the petitioner's depression

and taunting by other prisoners. Trial counsel recalled that he had decided not to

bring these difficulties up during trial because he thought they might portray the

petitioner as a vicious, hostile person.



              Trial counsel testified that he had met with the petitioner to discuss the

appeal process. He specifically recalled that the petitioner was opposed to further

proceedings. Trial counsel, who informed the petitioner that waiving an appeal was

against his best interest, insisted on a proceeding before the trial judge so as to

establish a record of the waiver of appeal. He recalled that both he and the trial

judge explained to the petitioner the effects of the waiver. The trial court found as

follows:

                      The [petitioner] was advised at length of his post-
              trial and appellate rights, which were explained to him
              using legal terminology, "plain [E]nglish," and with
              examples. The [petitioner] stated that he understood
              those rights, and the Court finds that the [petitioner] did
              understand his rights.
                      The [petitioner] was emphatic, positive and clear
              that he did not wish his trial defense attorney to pursue a
              New Trial Motion, nor any appeal of his conviction or
              sentence.



              In the order denying the petition for post-conviction relief, the trial court

held as follows:

                    [T]he waiver of new trial motion and waiver of
              appeal was done only at the request of the Petitioner,
              and the record clearly reflects his attorney's advice not to
              waive those matters.
                    Further, this Court finds that the performance of

                                            7
              his attorney did not fall below that reasonably expected
              of defense counsel ....

The testimony presented by the petitioner conflicted with that of his trial counsel.

The petitioner claimed he was unable to communicate, to speak, read or eat and

could only sleep in the months before trial. His trial counsel testified that, although

the petitioner appeared fatalistic and provided little assistance in forming a mental or

factual defense, he was able to communicate that he felt he had been caught and

wanted to get on with the trial. Moreover, trial counsel took precautionary steps to

make sure the petitioner understood the rights he was waiving. The trial court found

the petitioner understood his rights and the ramifications of waiver. In addition, the

trial court concluded that trial counsel had rendered effective assistance to the

petitioner. The court's ruling implicitly accredited the testimony of trial counsel over

that of the petitioner. In our view, the record supports this conclusion.



              Accordingly, the judgment of the trial court is affirmed.



                                                  _____________________________
                                                  Gary R. Wade, Judge

CONCUR:



_______________________________
William M. Barker, Judge



_______________________________
Curwood Witt, Judge




                                            8
