           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE

                          JULY 1999 SESSION          FILED
                                                     January 25, 2000

                                                  Cecil Crowson, Jr.
                                                Appellate Court Clerk
JOHN V. WOODRUFF,                *    No. 01C01-9811-CR-00449
                                      M1998-00695-CCA-R3-CD

      Appellant,                 *    DAVIDSON COUNTY

V.                               *    Hon. J. Randall W yatt, Jr., Judge
STATE OF TENNESSEE               *    (Post-Conviction)

      Appellee.                  *


For Appellant                         For Appellee

William A. Lane                       Paul G. Summers
3236 Dilton Mankin Road               Attorney General and Reporter
Murfreesboro, TN 37127                425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      Marvin E. Clements, Jr.
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493



OPINION FILED:



AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                         OPINION

               The petitioner, John V. Woodruff, Jr., appeals the denial by the

Davidson County Criminal Court of his petition for post-conviction relief on October
15, 1998. On appeal, the petitioner alleges that his counsel provided ineffective

assistance due to counsel’s failure to adequately advise him concerning his right to

testify at his trial and in overriding the petitioner’s desire to testify. Additionally, the
petitioner asserts that counsel was ineffective in failing to ensure the redaction from

evidence introduced at the petitioner’s trial of a reference to the petitioner’s parole

status at the time of his offenses. Following a review of the record and the parties’
briefs, we affirm the judgment of the post-conviction court.



                                 I. Factual Background

               The petitioner was convicted in 1994 of first degree premeditated

murder, first degree felony murder, especially aggravated robbery, and especially

aggravated kidnapping. The petitioner’s convictions resulted from his participation

along with three other men in the robbery and strangulation of Derrick Grant at the

Twelve Oaks Motel in Berry Hill, Tennessee, and the subsequent kidnapping and
shooting of Mr. Grant’s companion, Reba Benford. Pursuant to an investigation by

the Nashville Metropolitan Police Department of the murders of Mr. Grant and Ms.

Benford, the police interviewed the petitioner, who initially denied any knowledge of
the murders. However, during a subsequent interview, the petitioner provided a

statement detailing his involvement in the offenses, a statement which was later

introduced at his trial. Following his convictions, the petitioner received two
consecutive life sentences for the murder convictions and concurrent sentences of

twenty years incarceration for the especially aggravated robbery conviction and

twenty years incarceration for the especially aggravated kidnapping conviction.



               On August 1, 1996, this court affirmed the petitioner’s convictions and

sentences. State v. Woodruff, No. 01C01-9507-CR-00217, 1996 WL 429167

(Tenn. Crim. App. at Nashville, August 1, 1996), perm. to appeal denied, (Tenn.
1997). Accordingly, on January 29, 1998, the petitioner filed the instant petition for


                                              2
post-conviction relief in the Davidson County Criminal Court. Thereupon, the post-

conviction court appointed counsel and conducted an evidentiary hearing on

October 7, 1998.


              At the post-conviction evidentiary hearing, the petitioner testified on his

own behalf. First, he complained concerning his attorney’s advice that he not testify
at his trial. He could not recall any specific discussions with his attorney concerning

the option of testifying but asserted generally that he did not always understand his

attorney’s explanations concerning the law applicable to his case. According to the
petitioner, he was therefore forced to blindly follow his attorney’s instructions.



              Inconsistent with the above testimony, the petitioner also stated to the
post-conviction court that, whenever he inquired concerning legal issues, his trial

attorney answered his questions satisfactorily. Moreover, with respect to his

decision to forego testifying at his trial, the petitioner conceded that, at the time of

his trial, his criminal record included at least four prior felonies. He further conceded

that the contents of his testimony at trial would have been identical to information
contained in his statement to the police. He concluded that, at the time of his trial,

“it didn’t matter” to him whether he testified.



              Second, the appellant maintained at the post-conviction evidentiary

hearing that his attorney was responsible for the erroneous introduction at his trial of

evidence concerning his parole status at the time of his offenses. He conceded
that, following the erroneous introduction of this information at his trial, he agreed

that a curative instruction by the trial court would remedy any potential prejudice.

Nevertheless, he again asserted that he did not understand the proceedings and

was blindly following his attorney’s instructions.


              Mark J. Fishburn, the petitioner’s trial attorney and currently a judge in

Davidson County, also testified at the hearing. He testified that, at the time of the
petitioner’s trial, he had been practicing criminal law for approximately fourteen


                                             3
years. He had provided representation in approximately one thousand criminal

cases and participated in sixty or seventy criminal jury trials. Approximately one half

of these criminal jury trials involved homicides.


                   In the petitioner’s case, Judge Fishburn spent approximately one

hundred hours preparing for trial. His preparation included extensive discussions
with the petitioner on at least eight or nine occasions concerning whether the

petitioner would testify at trial. Judge Fishburn conceded that he advised the

petitioner against testifying. He based his advice upon several factors: (1) the
petitioner possessed an extensive criminal record of six prior felony convictions; (2)

the State’s introduction at trial of the petitioner’s statement to the police

communicated the petitioner’s account of events to the jury; and (3) if the petitioner
testified, he would be subject to cross-examination concerning inconsistencies

between his account of events and other evidence introduced at trial. Nevertheless,

Judge Fishburn testified that the final decision whether to testify at trial rested

entirely with the petitioner. Specifically, Judge Fishburn recounted,

                   We had lengthy discussions about the pros and cons.
                   [Mr. Woodruff] wanted to testify first. We discussed why
                   he wanted to testify. I gave him the - - kind of the
                   opposing view and the consequences of him testifying.
                   He still wanted to testify. The next time he chose not to.
                   We went back and forth, He probably changed his
                   opinion two or three times before . . . he finally decided
                   what he wanted to do.

Indeed, Judge Fishburn noted that the petitioner
                   was placed under oath [before the trial court] and
                   questioned extensively [by Judge Fishburn] about his
                   desire - - his willingness or desire to testify. And he
                   clearly indicated that he chose not to after [our] many
                   discussions.1

    1
      We note in passing that, during cross-examination of the petitioner at the post-conviction
evidentiary hearing, the prosecutor read to the petitioner the transcript of this colloquy between the
petitioner and his trial counsel, which appeared to largely comply with the procedure set forth by our
supreme court in Mom on v. State , No. 03S01-9805-CR-00049, 1999 WL 1146746, at **6-7 (Tenn. at
Knoxville, November 15, 199 9)(renumbe red No. E1996-000 07-SC-R11 -PC, 1999 Term ). Moreover,
at the conclusion of the post-conviction evidentiary hearing, the prosecutor asked that “the technical
record and the transcripts be m ade an exhibit for the purpose of this hearing and returned to the Co urt
of Appeals so they can rely on that, if they want.” Tenn. App. § 40-30-208(b)(1997). However, the
record before th is court do es not c ontain an y transcripts of the trial proc eedings , whethe r relating to
the petitioner’s decision to forego testifying at his trial or the jury’s exposure to a reference to the
petitioner’s parole status. Although this court may take judicial notice of court records in an earlier
procee ding of the sam e case , Delbridg e v. State , 742 S.W.2d 266, 267 (Tenn.1987), the petitioner
has the o bligat ion of ensu ring th at rele vant p ortion s of th e rec ord f rom the o rigina l case are in clud ed in
the reco rd on ap peal. Te nn. R. Ap p. P. 24; Morga n v. State , No. 03C01-9611-CR-00404, 1999 WL
76108 , at *3 (Ten n. Crim . App. at Kn oxville), perm. to appeal denied, (Tenn. 1999).

                                                           4
Finally, Judge Fishburn observed that the petitioner appeared to fully understand

their discussions concerning his option of testifying at trial.



              Judge Fishburn did concede that the jury was mistakenly informed of

the petitioner’s parole status at the time of the present offenses. During the

petitioner’s trial, the prosecutor played for the jury a tape cassette recording of the
petitioner’s statement to the police. Apparently in order to assist the jury in listening

to the recording, the prosecutor also provided a typed transcript of the recording.

While the prosecutor was playing the recording, the parties noticed that a reference
to the petitioner’s parole status, while properly redacted from the recording, had

been included in the transcript.



              The trial court immediately halted proceedings and discussed with the

parties, outside the presence of the jury, potential remedies. Judge Fishburn also

discussed the matter with the petitioner “at length.” Ultimately, the petitioner agreed

to a curative instruction by the trial court. At the post-conviction evidentiary hearing,

Judge Fishburn further noted that, prior to the playing of the recording and the jury’s
exposure to the transcript, the trial court had already instructed the jury that it was to

consider as evidence the tape cassette recording rather than the typed transcript.



              In order to place the error in context, Judge Fishburn also explained

events occurring prior to trial. He recalled that the prosecutor provided to him a

typed transcript of the petitioner’s statement to the police. Upon reviewing the
transcript, Judge Fishburn filed a motion to redact certain portions of the statement

and met with the prosecutor four or five times to discuss this issue. Ultimately, both

parties reached an agreement concerning which portions should be redacted. In

particular, the parties agreed that the State would omit any reference to the
petitioner’s parole status. However, the transcript was retyped three or four times

due to “fine-tuning.” Judge Fishburn recounted that

              [The reference to the petitioner’s parole status] was
              removed on one of the drafts and then there was some
              other minor modifications that were made subsequent to
              that. [The prosecutor’s] secretary was retyping it. And

                                             5
              somehow or another, that parole statement got back in.
              And when we - - when that was played to the jury, I don’t
              think any of us had realized that until we actually got to
              that page. It was like the last page. It was not on the
              tape, itself, but it did reappear in the transcript.


                                      II. Analysis

              Again, the sole issue in this appeal is whether the petitioner received
ineffective assistance of counsel during his trial proceedings. We initially note that

the petitioner bears the burden in these post-conviction proceedings of proving any

factual allegations in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-210(f)(1997). Moreover, on appeal, the findings of fact of the post-

conviction court are afforded the weight of a jury verdict and are conclusive unless

the evidence in the record preponderates against those findings. Henley v. State,

960 S.W.2d 572, 578-579 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631

(Tenn. Crim. App. 1997). In particular, this court will not reassess the credibility of

witnesses at the post-conviction evidentiary hearing or the weight and value to be

given their testimony. State v. Burns, No. 02S01-9806-CC-00058, 1999 WL

1006315, at *5 (Tenn. at Jackson, November 8, 1999)(renumbered No. W1996-
00004-SC-R11CD, 1999 Term)(publication pending). In contrast, we review de

novo the post-conviction court’s application of the law and the court’s determination

of mixed questions of law and fact. Id. at *6. Our supreme court has recently

observed that the issue of ineffective assistance of counsel is a mixed question of

law and fact. Id. Accordingly, our review of this issue is de novo.



              In order to establish ineffective assistance of counsel in contravention

of the Sixth Amendment to the United States Constitution and Article I, Section 9 of

the Tennessee Constitution, a petitioner must demonstrate that (1) his counsel’s

representation was deficient, and that (2) the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069

(1984). See also Henley, 960 S.W.2d at 579-580; Powers v. State, 942 S.W.2d

551, 557 (Tenn. Code. Ann. 1996). Reviewing courts need not address these
components in any particular order or even address both if the petitioner fails to


                                            6
meet his burden with respect to one. Henley, 960 S.W.2d at 580.



              In order to demonstrate that his counsel’s performance was deficient,
the petitioner must show that counsel’s representation fell below an objective

standard of reasonableness under prevailing professional norms. Strickland, 466

U.S. at 688; 104 S. Ct. 2064. See also Burns, No. 02S01-9806-CC-00058, 1999
WL 1006315, at *6. In Tennessee, our supreme court has interpreted this test to

require a showing that counsel’s performance was not within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). In applying this test, this court should refrain from second-

guessing tactical and strategic decisions by defense counsel. Henley, 960 S.W.2d

at 579. Rather, this court should defer to such decisions if they are based upon
adequate preparation. Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126

(1987). See also Holt v. State, No. 01C01-9805-CC-00201, 1999 WL 729206, at *7

(Tenn. Crim. App. at Nashville, September 20, 1999).



              Moreover, a reviewing court should not examine every allegedly
deficient act or omission in isolation, but rather in the context of the case as a whole.

State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). Ultimately, the

primary concern of the court should be the fundamental fairness of the trial
proceedings. Id. In other words, as previously noted, a petitioner must establish

prejudicial, as opposed to merely deficient, performance by trial counsel. In order to

establish prejudice, a petitioner must demonstrate a reasonable probability that the
result of the proceeding would have been different but for the defective performance

of counsel. Henley, 960 S.W.2d at 580. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; 104

S. Ct. at 2068.


              We conclude that the petitioner has failed to carry his burden of

demonstrating either defective performance of counsel or any prejudice. The record
reflects that the petitioner personally decided to forego testifying at his trial after


                                             7
receiving counsel’s careful and thorough advice as to the benefits and detriments

thereof. Moreover, because the content of the petitioner’s proposed testimony was

identical to his statement to the police, we decline to find any prejudice. As to the
reference to the petitioner’s parole status, the record reflects that counsel engaged

in considerable efforts to ensure the redaction of prejudicial portions of the

petitioner’s statement to the police. Under the facts of this case, we cannot say that
his failure to notice the inclusion of the reference in the final version of the typed

transcript amounted to deficient performance of constitutional dimensions. In any

event, as acknowledged by the petitioner in his brief, we must presume that the jury
heeded the curative instruction of the trial court in the absence of evidence to the

contrary. State v. Hall, 976 S.W.2d 121, 148 (Tenn. 1998), cert. denied,         U.S.    ,

119 S.Ct. 1501 (1999); State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App.
1996).



              For the foregoing reasons, we affirm the judgment of the trial court.




                                                  Norma McGee Ogle, Judge

CONCUR:



Jerry L. Smith, Judge




Thomas T. W oodall, Judge




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