         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 12, 2000

                 MICHAEL ADDISON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. P-21047 Bernie Weinman, Judge


                   No. W1999-00432-CCA-R3-PC - Filed October 24, 2000


Because the evidence does not preponderate against the trial court's determination that the petitioner
received the effective assistance of counsel at trial and on direct appeal, the order denying post-
conviction relief is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL , JJ., joined.

Howard B. Manis (on appeal) and John Fulks (at trial), Memphis, Tennessee, for the appellant,
Michael Addison.

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, John
Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The petitioner, Michael Addison, appeals the trial court's denial of his petition for post-
conviction relief. The single issue presented for review is whether the petitioner was denied the
effective assistance of counsel. Because the petitioner received adequate representation, the
judgment is affirmed.

        The petitioner was convicted of the April 2, 1993, shooting death of Donald Ray Irby.
During the course of the investigation, the petitioner admitted shooting the victim with a .357
Magnum. Annie Lee Fason was a witness to the crime. The trial court imposed a sentence of life
in prison. On direct appeal, this court affirmed. State v. Addison, 973 S.W.2d 260 (Tenn. Crim.
App. 1997). Application for permission to appeal was denied June 29, 1998.

        In an amended post-conviction petition, the petitioner alleged, among other things, that his
trial counsel failed to adequately communicate with him; failed to adequately investigate the case;
failed to properly cross-examine witnesses; failed to inquire as to his mental capacity; and failed to
request expert witnesses on his behalf. In addition, the petitioner alleged that his appellate counsel
was ineffective by having failed to properly research issues which either were raised on appeal or
could have been raised on appeal and that his appellate counsel otherwise had failed to serve as an
effective advocate.

         At the evidentiary hearing, the petitioner testified that he was initially represented by both
Attorney Ronald Johnson and Attorney Carolyn Watkins. The petitioner complained that he met
with Attorney Johnson, whom he understood to be his lead counsel, only once and with Attorney
Watkins, whom he identified as Attorney Johnson's assistant, only on three or four occasions. While
conceding that Attorney Watkins provided witness statements and transcripts to him in advance of
the trial, the petitioner also complained that his trial counsel failed to adequately explain the state's
evidence and failed to subpoena psychiatric and medical records of Annie Lee Fason for possible
impeachment purposes. The petitioner testified that his trial counsel were unable to locate any of
his possible witnesses, whom he could identify only by their street names. The petitioner also stated
that his trial counsel never asked him to undergo a psychiatric or psychological evaluation and
implied that his trial counsel did not adequately advise him on whether to testify at trial. He testified
that his appellate counsel was ineffective for having failed to challenge certain jury instructions on
felony murder and premeditated murder.

        Carolyn Watkins, who testified that she was lead trial counsel for the petitioner, explained
that when the death penalty was not sought by the state, her co-counsel, Ronald Johnson,
discontinued his participation in the defense. She recalled that she had both a criminal investigator
and a social investigator who assisted in the preparation of the case and that she was unable to find
any basis for a defense based upon a diminished mental capacity. Ms. Watkins stated that she had
met with the petitioner on several occasions and that her investigators had been unsuccessful in their
attempts to locate the individuals that the petitioner had identified by use of their street names. Ms.
Watkins acknowledged that there had been no attempt to determine whether or not Ms. Fason had
ever been treated for alcoholism. She did point out, however, that it was very clearly established by
the defense at trial that Ms. Fason had been drinking on the day of the shooting. Ms. Watkins
described the defense strategy as one of self-defense. Just prior to trial, the petitioner rejected an
offer to enter a plea of guilt in exchange for a Range II, 35-year sentence. Ms. Watkins contended
that she was adequately prepared to present the defense.

         At the conclusion of the hearing, the trial court determined that trial counsel had thoroughly
investigated the case, interviewed all witnesses that could be located, and had no basis to call
additional experts. The trial court concluded that the petitioner had received effective representation
at trial and on appeal.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn.1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to


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establish either factor, he is not entitled to relief. Our supreme court described the standard of
review as follows:

               Because 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 defendant makes an insufficient showing of one
               component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). On claims of ineffective assistance of counsel,
the petitioner "is not entitled to the benefit of hindsight, may not second-guess a reasonably based
trial strategy . . ., and cannot criticize a sound, but unsuccessful, tactical decision made during the
course of the proceedings." Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.1994). Such
deference to the tactical decisions of counsel, however, applies only if the choices are made after
adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.1992).

        Under our statutory law, the petitioner bears the burden of proving his factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact
made by the trial court are conclusive and will not be disturbed unless the evidence contained in the
record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App.1988).
The burden is on the petitioner to show that the evidence preponderated against those findings.
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.1978).

        In our view, the evidence here does not preponderate against the findings of the trial court.
As to witnesses sought by the petitioner to support his claim of self-defense, only their street names
were available. The petitioner was unable to supply addresses. The proof was that trial counsel,
through her investigators, made her best efforts to locate the witnesses. Nothing more can be asked.
Moreover, the petitioner was unable to produce these witnesses at the evidentiary hearing. Under
such circumstances, it is impossible to conclude that the petitioner would have benefitted by the
testimony of any of these witnesses. The same is true regarding his claim that trial counsel should
have produced at trial medical records of the witness Annie Lee Fason which might have pertained
to alcohol treatment or psychiatric treatment. The petitioner failed to produce any such documents
at the evidentiary hearing. It is, therefore, impossible to determine how such records, if they exist,
might have assisted the defense or otherwise have affected the results of the trial.

        Trial counsel attempted to find medical records to support the petitioner's claim that he had
had a head injury in the past. She was unable to locate any such records and concluded, from her
own perspective, that the petitioner had no basis for a claim of mental disease or defect. Further, the
petitioner failed to produce any evidence of mental disease or defect at the evidentiary hearing. In
consequence, there was no proof that he was prejudiced by any deficiency on the part of his trial
counsel. The petitioner acknowledged at the evidentiary hearing that it had been his decision to



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testify at trial. Otherwise, the trial court accredited the testimony of trial counsel at the evidentiary
hearing.

        Finally, the petitioner has not argued in this appeal that he was denied the effective assistance
of appellate counsel. It is not apparent from the record that petitioner was denied the effective
assistance of counsel either at trial or on appeal.

        Accordingly, the judgment is affirmed.



                                                        ____________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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