             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON              FILED
                              JUNE 1998 SESSION              July 14, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

THOMAS MICHAEL STONE,               )    C.C.A. NO. 02C01-9711-CC-00433
                                    )
             Appe llant,            )
                                    )    HENRY COUNTY
VS.                                 )
                                    )    HON. JULIAN P. GUINN,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
             Appellee.              )    (Post-conviction)


                 ON APPEAL FROM THE JUDGMENT OF THE
                   CRIMINAL COURT OF HENRY COUNTY


FOR THE APPELLANT:                       FOR THE APPELLEE:

VICKI H. HOOVER                          JOHN KNOX WALKUP
123 N . Poplar S t., Ste. A              Attorney General & Reporter
Paris, TN 38242
                                         PETE R M. C OUG HLIN
                                         Asst. Attorney General
                                         425 5th Avenu e North
                                         Nashville, TN 37243

                                         ROBERT RADFORD
                                         District Attorney General
                                         P.O. Box 686
                                         Huntingdon, TN 38344




OPINION FILED:____________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

      The Defendant, Thomas Michael Stone, was indicted for rape of a child,

rape, and incest, and convicted by a jury of all three charges. The convictions were

affirmed on direct a ppeal. State v. Thomas Micha el Stone, C.C.A. No. 02C01-

9503-CC-00063, Henry County (Tenn. Crim. App., Jackson, Dec. 13, 19 95). In th is

post-conviction relief proceeding filed on October 10, 1996, the Defendant

contends that he received ineffective assistance of counsel at trial and on appe al.

After an evidentiary hearing, the post-conviction court denied relief. Upon our

review of the record, we affirm.



      The Defendant specifically alleges that his trial counsel was ineffective in the

following particulars:

      (1) Failing to object to allege d hearsay tes timony;

      (2) Failing to call a lab technician as a witness;

      (3) Failing to call character witnesses;

      (4) Failing to attack the credibility of two of the State’s witnesses;

      (5) Failing to effec tively cro ss-exa mine the victim and the State’s ex pert
       witness;

      (6) Failing to offer an independent expert witness;

      (7) Failing to move for a change of venue;

      (8) Failing to m ove to dism iss the indic tment and to object to the
       amen ded ind ictmen t;

      (9) Failing to move to sever the charges; and

     (10) Fa iling to a ssist him in prep aring h is app eal.

      At the evidentiary hearing, the trial court heard testimony from the


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Defe ndan t's trial counsel (who also filed his direct appeal), the Defenda nt's mother,

and the Defe ndant. The trial c ourt also re viewed th e transcr ipt of the trial. In

denying the Defendant's claim for relief, the court ruled that no inadmissible

hearsay had been admitted as alleged; that the failure to call the lab technician was

irrelevant; that the pre judicial effec t of the failure to call character witnesses had

not been proved; that the credibility of one of the referenced witnesses had been

sufficien tly impeached and that the alleged impeachment evidence against the

other had not been prove n; that d efens e cou nsel’s cross-exam ination was pro per;

that the prejudicial effect of not calling an independent expert witness had not been

proved; that the Defendant had not proven any error in the appeal; that counsel

had no grounds for a change of venue or for a severance of charges; and that

defense counsel had not erred with respect to challen ging the in dictme nt. In

conclusion, the trial court stated that “trial counsel’s performance in every aspect

of this trial met and exceeded that range of competence dem ande d of atto rneys in

criminal c ases.”



      W e first note that in reviewing the Defendant’s Sixth Amendment claim of

ineffective 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 c ases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To prevail on a claim of ineffective counsel, a Defendant “must show

that counsel’s representation fell below an objective standard of reasonableness”

and that this performance prejudiced the defense. There must be a reasonable

probability that but for counsel’s error, the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984);

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Best v. State, 708 S.W .2d 421 , 422 (T enn. C rim. App . 1985). We note further that

in this post-conviction relief proceeding, the Defendant has the burden of proving

the allega tions in his petition by clear and convincing evidence, Tenn. Code Ann.

§ 40-30-210(f); and the factual findings of a trial court after an evidentiary hearing

“are conclusive on appeal unless the evidence preponderates against the

judgmen t.” State v. Buford , 666 S.W .2d 473 , 475 (T enn. C rim. App . 1983).



      In this cas e, the D efend ant alle ged th at his tria l lawyer was d eficient by,

among other things, failing to call certain witnesses. Because he did not call these

witnesses to testify at the post-conviction e videntiary hearing, however, he

adduced no proof as to how th ey would have be en help ful to his cas e. Accordingly,

he has failed to prove any prejudice resultin g from his law yer’s de cision not to c all

them at trial. These allegations are, therefore, withou t merit. The remain ing

conduct of which the Defendant complains amount to tactical decisions and/or

strategy calls. This Court should not second-guess trial counsel’s tactical and

strateg ic choices unless those ch oices we re uninfo rmed b ecaus e of inade quate

preparation, Hellard v. S tate, 629 S .W .2d 4, 9 (Ten n. 198 2); and coun sel sho uld

not be deemed to have been ineffective merely because a different procedure or

strategy might ha ve produ ced a d ifferent resu lt. Williams v. State, 599 S.W.2d

276, 280 (T enn. C rim. A pp. 19 80). T he De fenda nt has simp ly failed to clearly and

convincingly prove that his lawyer’s performance was the result of inadequate




                                           4
preparation or that he failed in any o ther respect to m eet the “objective standard

of reaso nablen ess.” Th ese alleg ations are therefore also witho ut merit.



      The trial court having correctly denied relief, we affirm the judgment below.




                                 _________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________
PAUL G. SUMMERS, JUDGE



____________________________
JOE G. RILEY, JUDGE




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