           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          JANUARY SESSION, 1996


TONY V. CARRUTHERS,           )
                                                            FILED
                                     C.C.A. NO. 02C01-9505-CR-00130
                              )                                  April 17, 1996
      Appellant,              )
                              )                            Cecil Crowson, Jr.
                              )      SHELBY COUNTY          Appellate Court Clerk
VS.                           )
                              )      HON. BERNIE WEINMAN
STATE OF TENNESSEE,           )      JUDGE
                              )
      Appellee.               )      (Post Conviction Relief)




FOR THE APPELLANT:                   FOR THE APPELLEE:

MR. CRAIG V. MORTON, II              CHARLES W. BURSON
Attorney at Law                      Attorney General and Reporter
212 Adams Avenue
Memphis, TN 38103                    CLINTON J. MORGAN
                                     Attorney General’s Office
                                     450 James Robertson Parkway
                                     Nashville, TN 37243

                                     JOHN W. PIEROTTI
                                     District Attorney General

                                     REGINALD R. HENDERSON
                                     Assistant District Attorney
                                     201 Poplar Avenue
                                     Third Floor
                                     Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


      The Appellant, Tony Von Carruthers, was convicted of aggravated assault

in 1990. He was sentenced to ten years imprisonment. In September of 1992,

Appellant petitioned for post-conviction relief in the Shelby County Criminal Court

alleging that he received the ineffective assistance of counsel in violation of his

rights under the Sixth Amendment to the United States Constitution. Following

an evidentiary hearing, the trial court denied Appellant’s petition. On appeal,

Appellant again asserts that his trial attorney inadequately prepared and

presented the defense at trial and that the lower court erroneously concluded

otherwise. Finding no error in this record with regard to the denial of the petition,

we affirm the decision of the criminal court.



      W hen an Appellant's post conviction claim involves the Sixth Amendment

right to effective 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 his or her counsel's representation fell below

the objective standard of Baxter and, additionally, that this sub-standard

representation actually prejudiced the defense. Strickland v. W ashington, 466

U.S. 668 (1984).



      Our Supreme Court has held that “[t]o establish actual prejudice, the

defendant must demonstrate that ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

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different. . . . A probability is ‘reasonable’ if it is ‘sufficient to undermine

confidence in the outcome’ of the proceeding.” Overton v. State, 874 S.W .2d 6,

11 (Tenn. 1994) (quoting Strickland, 466 U.S. at 694).



      "In post-conviction relief proceedings the Petitioner has the burden of

proving the allegations in his [or her] petition by a preponderance of the

evidence." McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983).

Furthermore, the factual findings of the trial court in a post-conviction proceeding

are conclusive on appeal unless the appellate court finds that the evidence

preponderates against the findings. Butler v. State, 789 S.W .2d 898, 899 (Tenn.

1990). In reviewing the denial of collateral relief, this Court is bound by the

following well established rules of appellate review:

      (1) this court cannot reweigh or reevaluate the evidence or
      substitute its inferences for those drawn by the trial judge, (2)
      questions concerning the credibility of witnesses, weight and value
      to be given their testimony, and factual issues raised by evidence
      are resolved by the trial judge, and (3) on appeal, the petitioner has
      the burden of demonstrating why the evidence contained in the
      record preponderates against the judgment entered by the trial
      judge.

Taylor v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993) (citing Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990)).



      The record reflects that, prior to his trial, Appellant was appointed four

successive attorneys.     Due to continuing dissatisfaction, he requested the

dismissal of each of the first three.         The Appellant's last attorney, who

represented him at trial, was appointed less than a month prior to trial.




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      Several of the specific allegations raised by Appellant stem from the period

of time between the trial attorney’s appointment and the trial. Appellant claims

that his attorney only interviewed him once before trial and then met with him a

few times briefly in the court room. Also, Appellant maintains that the trial

attorney failed to engage in discovery until the day of the trial.



      To the contrary, the trial attorney testified that, once he took over the case,

he immediately assigned an investigator from the public defender’s office to the

case. Counsel’s notes, to which he constantly referred during the post-conviction

hearing, reflected an adequate knowledge of Appellant's case. The trial judge

found that “the trial attorney had adequately discussed the case with his client

prior to trial and proper pre-trial investigation . . . had been made.” We are

unable to find that the evidence preponderates against this finding.



      Furthermore, there is no evidence in the record that additional time

between trial counsel’s appointment and trial would have led to a different result

in the case. As such, Appellant has failed to meet his burden of proving that any

prejudice resulted from the attorney’s allegedly dilatory discovery and inadequate

pretrial investigation.



      Only Appellant and his trial attorney testified at the post-conviction hearing.

As indicated above, there was some discrepancy in their versions of the

conversation and preparation which preceded the trial.               The majority of

Appellant's testimony related to his attorney’s alleged failure to call certain

witnesses whom Appellant        felt would have been crucial to his defense.

Appellant testified that, though he told his attorney about these witnesses, they

                                        -4-
were never subpoenaed. He later admitted that two of the witnesses had in fact

been subpoenaed.



      The trial attorney testified that he attempted to locate every witness

mentioned by Appellant. One of these potential witnesses was present at trial

however he was not called as a witness because he claimed to have no personal

knowledge of the events surrounding the shooting. Another potential witness,

listed as a state’s witness, had given a statement incriminating Appellant.

Therefore, defense counsel did not call him. As for the third possible witness, the

trial attorney had noted that Appellant had told him that he, Appellant, would

communicate with this witness because contact by an attorney might offend the

witness.



      The trial court found that the trial attorney made an effort to locate all the

witnesses of which he had knowledge.           Appellant has presented naked

allegations to the contrary without even a trace of evidence which preponderates

against the trial court’s findings. Moreover, Appellant has again failed to show

any actual prejudice with regard to this point. There is no evidence that trial

testimony of these witnesses would have been favorable to the accused had it

been a part of the Appellant's defense. See Taylor v. State, 875 S.W .2d 684,

687 (Tenn. Crim. App. 1994) (no prejudice demonstrated where post-conviction

petitioner failed to show that potential defense witnesses, who were not called by

trial counsel, would have testified favorably). Indeed, the testimony of the trial

attorney suggests that at least one of the witnesses gave a statement

corroborating the State’s version of the shooting while another claimed to know

nothing about the crime.

                                        -5-
       Finally, Appellant insisted that certain medical records reflecting an

inconsistency in the victim’s statement with regard to how many times she was

shot should have been admitted at trial. At the post-conviction hearing, the trial

attorney testified the victim had stated on different occasions that she had been

shot three and five times. The trial attorney reviewed the medical records which

revealed that the witness had in fact been shot four times. Concluding that this

information did not add significantly to the cross-examination of the victim, the

trial attorney made a tactical decision not to refer to it. A reviewing court must

defer to an attorney’s trial strategy or tactical choices so long as they are

informed and based upon adequate preparation. Hellard v. State, 629 S.W .2d

4, 9 (Tenn. 1982); Vermilye v. State, 754 S.W .2d 82, 85 (Tenn. Crim. App.

1987).



       Because we find that Appellant has failed to present evidence that

preponderates against the trial court’s conclusion that the advice given and the

services rendered by the trial counsel were competent, we affirm the decision of

the trial court .




                                ____________________________________
                                JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
LYNN W . BROW N, SPECIAL JUDGE




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