         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                          JANUARY SESSION, 1999         April 21, 1999

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
MAJO R RIC HARD SON , JR.,        )   C.C.A. NO. 01C01-9803-CR-00111
                                  )
           Appe llant,            )
                                  )   DAVIDSON COUNTY
V.                                )
                                  )
                                  )   HON. STEVE R. DOZIER, JUDGE
STATE OF TE NNE SSE E,            )
                                  )
           Appellee.              )   (POST-CONVICTION)



FOR THE APPELLANT:                    FOR THE APPELLEE:

THOMAS H. MILLER                      JOHN KNOX WALKUP
P.O. Box 681662                       Attorney General & Reporter
Franklin, TN 37068-1662
                                      CLINTON J. MORGAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      VICTO R S. JO HNS ON, III
                                      District Attorney General

                                      PATTY S. RAMSEY
                                      Assistant District Attorney General
                                      Washington Square, Suite 500
                                      222 2nd Avenue North
                                      Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                       OPINION
       Major Richard son, Jr., the Petitio ner, ap peals from th e orde r dism issing his

petition for post-conviction relief. Petitioner was convicted of agg ravated robbe ry on

June 26, 1992, and his conviction was affirmed on appeal by a pan el of this cou rt.

State v. Major Richard son, Jr., No. 01C01 -9301-CR-00016, Davidson County (Tenn.

Crim. App., at Nashville, August 19, 1993). In his petition for post-co nviction relief,

Petitioner alleges that he received ineffective assistan ce of cou nsel at trial. W e

affirm the tria l court’s judg ment.



        While the new Post-Conviction Procedure Act went into effect as of May 10,

1995, its authority only extends to petitions filed after that date. Tenn . Code Ann. §

40-30-201 et seq. At the time Petitioner’s post-conviction petition was filed on July

12, 1994, th e burden of proving the allegations raised in the petition by a

prepon deranc e of the ev idence was the Petitioner’s . Clenny v. State, 576 S.W.2d

12 (Tenn . Crim. A pp. 197 8), cert. denied, 441 U.S . 947, 99 S .Ct. 2170, 60 L.Ed.2d

1050 (1979); McG ee v. State , 739 S.W.2d 789 (Tenn. Crim. App. 1987 ).Moreover,

the trial court’s findings of fact are conclusive on appeal unless the evidence

preponderates against the judgm ent. Tidwe ll v. State, 922 S.W.2d 497, 500 (Tenn.

1996); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn. 1995); Coop er v. State ,

849 S.W .2d 744, 746 (Tenn. 199 3).



       In reviewin g Petitione r’s Sixth Amen dment claim of ineffective assistance of

coun sel, this court must determine whether the advice given or services rendered

by the attorney are within th e rang e of co mpe tence dem ande d of all a ttorney s in

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

                                           -2-
a claim of ineffe ctive co unse l, a petitio ner “m ust sh ow tha t coun sel’s representation

fell below a n objective standa rd of reas onable ness” a nd that this performance

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

coun sel’s error the result of the proceeding wou ld have b een differe nt. Strickland

v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80

L.Ed.2d 674 (19 84); Best v. Sta te, 708 S.W.2d 421, 422 (Tenn. Crim . App. 1995 ).



       This court should n ot second-g uess trial counse l’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 19 82). Coun sel shou ld not be d eeme d to

have been ineffective merely because a different procedure or strategy migh t have

produced a different re sult. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

App. 19 80).



       Petition er’s trial counsel was a Metro Public Defender assigned to represent

the Petitioner from September 1991 through May 1992 when his trial was held.

Counsel testified that she met with Petitioner for the first time on September 29,

1991. She late r met with him on at least eleve n (11) oc casions for a total of 5.1

hours. Her co -coun sel was her supervisor, who was the senior trial lawyer in the

Public Defende r’s Office. Prior to trial, counsel filed various motions in limine and

a motion to suppress the identifications of the Petitioner.           Counsel conducted

discovery, including looking at evidence in the police prop erty room. Prim arily,

counsel determined the defense theory for trial as a case of mistaken identification.




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      In prepara tion for trial, they fo cused on incon sistencie s between the

witnesses’ descriptions of the robber to the police and the Petitioner’s actual

appearance. Trial counsel an d her assistan ts also interviewed many of the S tate

and defense witnesses prior to trial.       In addition, she set up a chart for trial

documenting State’s witnesses’ descriptions of the s uspe ct to the police in

comp arison to th e true ap pearan ce of the P etitioner.



      The inconsistencies in the description of the suspect versus the appearance

of the Petitioner centered upon the fact that Petitioner had a tattoo in the center of

his chest. In spite of co unse l’s efforts to find s ome one p rior to tria l who c ould

document that Pe titioner d id have a tattoo at the tim e of the robbe ry, she was u nable

to identify anyone who co uld verify that fa ct. They d iscusse d the po ssibility of the

Petitioner exhibiting h is tattoo at trial, but de bated wheth er that w ould w aive his

rights regardin g testimo ny and im peach ment by his prior convictions. Ho wever,

during the trial counsel did discover a photograph taken of the Petitioner at the

Health Departmen t after he was a rreste d whic h exhib ited his tattoo.             T his

photog raph wa s prese nted as evidenc e at trial.



      During the trial, c ouns el reca lled tha t som e preju dicial testimony was given

against the Petition er, but her strategy was to “just let it go,” because she did not

want to focus upon it and allow it to “stick in the jury’s mind.” Prior to the trial date,

counsel and her a ssistan ts discu ssed with Pe titioner th e pros and c ons o f his

testifying. Trial counsel advised him that if he did testify then his prior record,

including several convictions for felony crimes involving dishonesty, would be used

to impe ach his te stimon y and tha t he wou ld not ma ke a go od witne ss.




                                           -4-
       Cou nsel’s supervisor testified that she served as co -coun sel in th e Petitio ner’s

case. While her supervisor did not participate in the questioning at the hearing on

the motion to suppress, she believed that it was a thorough hearing with counsel

receiving information which assiste d her in prepa ring for c ross-e xamin ation a t trial.

The major topics in the identification issue revolved around the inconsistencies in the

State ’s witnesses’ testim ony. The su pervisor recalled that the Petitioner’s tattoo was

particu larly central to th e identification issu e, with a n inves tigator fo r the P ublic

Defe nder’s Office assisting cou nsel in attemp ting to locate family m embers or other

witnesses who could verify that Petitioner had the tattoo at the time of the robbery.

She recalled that a photograph was found late in the trial which demonstrated the

large tattoo that Petitioner had on his chest and it was admitted at trial as evidence.



       The supervisor accompanied counsel to the scene of the rob bery d uring th eir

preparation for trial. She also assisted counsel in preparing jury instructions and

various motions. They discusse d the de cision of w hether P etitioner sh ould testify

with the Pe titioner, a dvising him o f all the implications based upon his substantial

prior record. The supervisor stated that she believed that “we prepared the case and

that we thoroughly investigated the case and presented the best that anyone could

to the jury and they m ade their decision .”



       Petitioner testified that prio r to trial he met w ith his trial couns el “periodic ally.”

He did not recall seeing counsel’s supervis or until “alm ost the da y of the trial.”

Petitioner had b een a dvised by cou nsel th at iden tification was th e big iss ue in h is

case. At the time of his arrest, Petitioner stated that he did have two (2) tattoos on

his ches t, the first h e got in 1974 a nd the se cond w as don e in the ea rly 1980's. He

could not recall anyone other than counsel coming to talk to him about his case prior

                                              -5-
to trial. The night b efore tr ial, counsel asked Petitioner about looking at his medical

record to see if he h ad tattoos .



       Petitioner testified that his couns el advised him prior to trial not to testify

because of his prior criminal history, but that she did not go into detail as to how it

could hurt him. However, counsel did tell him that regardless of his prior convictions,

the decisio n to tes tify was u p to him . Petition er told h er he d id not wan t to testify if

it was going to h urt him. He rec alled that they discussed his decision regarding

whethe r to testify twice p rior to the trial an d once during the trial itself.



       In an order denying Petitioner’s petition for post-conviction relief, the trial court

held that the trial record was abundantly clear that “the jury was well informed of the

issues in this case and resolved them against the Petitioner.” The trial court further

found that testimony re vealed that “numerous hours had been spent with the

Petitioner in preparation for trial and efforts had been made to locate individuals that

would confirm the Petitioner’s accou nt of when he received his tattoos.” The trial

court reasoned that while trial counsel was unsuccessful in verifying the Pe titioner’s

account of his history of tattoos in their effort to disprove the identity of Petitioner as

the perpetrator of this offense, counsel was “still successful in getting the proof

before the jury without having to subject the Petitioner to cross-examination about

his prior record.” In addition , any claims the Petition er had re garding his right to

testify were found to be without merit as “testimony of trial counsel from the prior

hearings clearly in dicate [d] that th ere we re disc ussio ns ab out the [Petitioner]

testifying and the risk there in.”




                                              -6-
       W e agree with the trial cou rt that Petitioner’s allegation that counsel was not

adeq uately prepa red no r did sh e fully inve stigate his case and interview witnesses

is without merit. The testimony of trial coun sel revealed that n umerou s hours we re

spent in preparation for trial and efforts were made to locate witnesses to verify when

Petitioner received his tattoos. Petitioner also contends that counsel failed to find

evidence dem onstra ting the existen ce an d age of his tattoos until near the end of the

trial. It is true that the photographs depicting the tattoos on P etitioner’s chest were

not discov ered u ntil nea rly the end of the State’s proof. However, testimony of trial

counsel indicated a great e ffort on b oth he r part an d her in vestiga tors in th eir attempt

to locate someone who could verify the existence and age of the Petitioner’s tattoos

prior to trial. The trial court found that trial counsel was successful in admitting a

photograph demonstrating the tattoos on Petitioner’s chest, therefore, we find that

any error in the laten ess of the hour wa s harm less.



       Regarding Petitioner’s decision of wheth er to testify at trial, the tria l court

found that he “was extremely vague on the number of discussions he had with trial

counsel about his testifying at trial and was further unclear in his testimony about

what information he had been provided.” From our review of the record, it is clear

that Petitioner’s testimony reflects that counsel discussed the decision of whether

to testify with Petitioner on at least three occasions, one of which occurred during the

course of the trial. Trial counsel indicated that there were discussions with Petitioner

during which the risks of testifying were discussed and that Petitioner’s prior dealings

with the crim inal justice system indicate that he was informed of the risks of going

to trial and testifying. W hile Petitioner may now wish he would have testified, we

cannot find an y preju dice in the advice of trial co unse l regard ing the poss ibility of his

prior con victions be ing used to impea ch his tes timony.

                                              -7-
          After a thorough review of the record, briefs and the law in the case sub

judice, we find that the Petitioner has not proven his allegations by a preponderance

of the evid ence . We agree with tha t trial cou rt that P etitione r’s trial coun sel’s

preparation and performance did not fall below an objective standard of

reason ablene ss, nor pre judice the defens e provide d to Petition er.



          W e affirm th e trial co urt’s dis miss al of Pe titioner’s petition for post-conviction

relief.



                                       ____________________________________
                                       THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JERRY L. SMITH, Judge




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