        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs August 8, 2000

                   NASSEL BROWN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Shelby County
                        No. P-21396    James C. Beasley, Jr., Judge



                   No. W1999-01558-CCA-R3-PC - Filed October 24, 2000


The petitioner, convicted of one count of rape of a child and sentenced to fifteen years, appeals
from the trial court’s order dismissing his petition for post-conviction relief. He argues that his
trial counsel was ineffective for failing, inter alia, to investigate his case and for failing to
interview and subpoena certain witnesses. We conclude that the petitioner has not demonstrated
that the trial court erred. Therefore, we affirm the order dismissing his petition.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
JAMES CURWOOD WITT, JR., JJ., joined.

Christie Worley-Stephens, Memphis, Tennessee, for the appellant, Nassel Brown.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paula Wulff, Assistant District Attorney, for
the appellee, State of Tennessee.


                                           OPINION

                                          Introduction

        The petitioner, Nassel Brown, appeals from a Shelby County trial court’s order
dismissing his petition for post-conviction relief. Convicted in 1996 of one count of rape of a
child, the petitioner was sentenced to fifteen years incarceration. Now serving that sentence, the
petitioner has filed a post-conviction petition alleging ineffective assistance of counsel. In
consideration, the Shelby County trial court conducted an evidentiary hearing and found that the
petitioner’s claim had no merit. Accordingly, it dismissed the petition. Now, on appeal to this
Court, the petitioner argues that this disposition was in error and asks this Court to reverse the
decision of the trial court. After careful review, we find that the petitioner has not demonstrated
that the trial court erred. Therefore, we affirm the trial court’s order dismissing the petition.
                                                          Facts

        As background, on January 12, 1996, the petitioner was convicted by a Shelby County
jury of one count of rape of a child and sentenced to fifteen years incarceration. On November
13, 1997, this conviction was affirmed by a panel of this Court. See State v. Nassel Brown, No.
02C01-9606-CR-00187 (Tenn. Crim. App. filed Nov. 13, 1997, at Jackson). Less than one year
after our state’s supreme court denied the petitioner’s application for permission to appeal, he
filed this petition for post-conviction relief. The Shelby County trial court, considering this
petition, held an evidentiary hearing on November 4, 1999. The facts relevant to this appeal
were established at this hearing.

         At the hearing, the petitioner testified at some length. He identified at least five different
witnesses that, in his judgment, his trial counsel should have subpoenaed and called to testify. In
his estimation, several of these witnesses would have stated that, for the most part, the defendant
was not around the victim during the relevant time period. Further, he stated that the testimony
of one of these witnesses, the victim’s mother, would have been especially helpful. Second, the
petitioner testified that his trial counsel failed to advise him of his possible sentence. Third, he
testified that his counsel failed to act properly when, at trial, a health department official
testified. Fourth and finally, he complained that his trial counsel failed to investigate a similar
complaint in the victim’s past.

        In response, trial counsel, Diane Thackery, testified. She testified to her experience in
similar cases as well as to details of the defendant’s case. She explained her decisions not to call
certain witnesses.1 Also, she stated that she advised the petitioner of his possible sentence and
explained that the petitioner, preferring a trial, seemed unwilling to accept any plea offer.
Finally, after some investigation, she found no confirmation in the petitioner’s claim that the
victim had a similar incident in her past and therefore chose not to pursue that angle at trial.

       After hearing this testimony and, in fact, conducting its own thorough examination of
both witnesses, the trial court made the following findings of fact and dismissed the petition:

         [I]t appears to me that from the proof that I’ve heard, that Ms. Thackery
         interviewed every witness that the state had, including the victim, child victim,
         and her mother; interviewed anybody that the defendant gave her as a potential
         witness that might be of benefit or help.

         ....

         With regard to the punishment involved, the indication was that Mr. Brown’s
         position all along was, I don’t want an offer. I want to go to trial. He rejected
         any offers. Ms. Thackery indicated she explained the potential punishment and

          1
           Trial counsel stated that, in her judgment, several of the witnesses identified by the petitioner would not
have bee n helpful, that the m other of the vic tim was not cre dible and showed u p at trial visibly drun k, and finally
that another of these witnesses was never brought to her attention.

                                                             2
             what might happen, and Mr. Brown’s position was, he wanted to go to trial which
             is his right.

             ....

             The criteria in these hearings, post-conviction hearings, is, did counsel represent
             the defendant in a proper manner, and if counsel did not, did that
             misrepresentation or poor representation affect in such a way the outcome of the
             trial or the verdict of the jury that it would have been different if a lawyer had
             conducted themselves properly under the guidelines set out in Baxter v. Rose.

             This Court’s of the opinion, after the hearing that I’ve heard, that Ms. Thackery
             conducted herself in a proper fashion; that she did give effective representation to
             Mr. Brown; that she did prepare adequately for the trial; that she did conduct the
             trial in a manner that was appropriate; that there were the issues – the appropriate
             issues were attacked; the appropriate issues – the jury ruled in favor of the state’s
             proof.

             And there is no indication that I have that would indicate to me that Ms. Thackery
             rendered ineffective assistance of counsel to Mr. Brown or that she did anything
             that affected the outcome of this trial.

From this ruling, the defendant now appeals.


                                                                             Analysis

        The petitioner presents only one question for review: Did the trial court err in dismissing
his petition for post-conviction relief which alleged ineffective assistance of trial counsel? After
review, we affirm the trial court’s order dismissing the petition.

              T h i s C o u r t r e v i e w s a c l a i m o f i n e f f e c t i v e a s s i s ta n c e o f c o u n s e l u n d e r t h e s t a n d a r d s o f B a x t e r
v . R o s e , 5 2 3 S . W .2 d 9 3 0 ( T e n n . 1 9 7 5 ) a n d S t r i c k la n d v . W a s h i n g to n ,1 0 4 S . C t . 2 0 5 2 , 8 0 L . E d .2 d
6 7 4 ( 1 9 8 4 ) . T h e p e t i t i o n e r h a s t h e b u rd e n to p r o v e th a t ( 1 ) t h e a t t o r n e y ’s p e rf o r m a n c e w a s
d e fic ie n t, a n d (2 ) th e d e fic ie n t p e rf o rm a n c e re s u lte d in p re ju d ic e to th e d e f e n d a n t s o a s to d e p riv e
h i m o f a fa ir tr ia l. S e e S t r i c k la n d v . W a s h i n g to n , 1 0 4 S . C t . a t 2 0 6 4 ; G o a d v . S t a t e , 9 3 8 S . W .2 d 3 6 3 ,
3 6 9 ( T e n n . 1 9 9 6 ); O v e rto n v . S ta te , 8 7 4 S .W .2 d 6 , 1 1 (T e n n . 1 9 9 4 ); a n d B u tle r v . S ta te , 7 8 9 S .W .2 d
8 9 8 , 8 9 9 ( T e n n . 1 9 9 0 ) . T o d e m o n s tr a te p re ju d ic e a d e f e n d a n t o r p e t i t i o n e r m u s t s h o w t h a t t h e r e i s a
r e a s o n a b l e p r o b a b i l i t y t h a t b u t f o r c o u n s e l’ s e rr o r th e re s u l t o f th e p ro c e e d in g w o u ld h a v e b e e n
d if fe re n t.

             T h e      te s t in T e n n e s   se e in d e te rm        in in g w h e th e r c o u n s e l p r o v id e d e ffe c tiv e               a s s is ta n c e    is
w h e th e r h is       p e rfo rm a n c e w     a s w ith in th e       ra n g e o f c o m p e te n c e d e m a n d e d o f a tt o r n e           y s in c rim in         a l
ca ses. S ee             B a x te r, 5 2 3 S    .W .2 d a t 9 3 6       . T h e p e t i t i o n e r m u s t o v e rc o m e th e p re                su m p tio n th         a t
c o u n s e l’ s c o   n d u c t fa lls w ith   in th e w id e r a     n g e o f a c c e p t a b l e p r o f e s s io n a l a s s is ta n c e . S    e e S tric k la n     d ,
                                                                                    3
1   0 4 S .C t. a t 2 0 6 5 ;       A lle y v . S ta te , 9 5 8 S .W .2 d 1 3 8 , 1 4 9 (T e n n . C r im . A p p . 1 9 9 7 ); a n d H ic k s                       v . S ta te ,
9   8 3 S .W .2 d 2 4 0 ,             2 4 6 ( T e n n . C r im . A p p . 1 9 9 8 ) . T h e re fo r e , in o r d e r t o p r o v e a d e f ic                       ie n c y , a
p   e titio n e r m u s t s h      o w th a t c o u n s e l ’s a c t s o r o m is s io n s w e r e s o s e rio u s a s to fa ll b e lo w a n o                      b je c tiv e
s   ta n d a r d o f r e a s o n     a b le n e s s u n d e r p r e v a i l i n g p r o f e s s i o n a l n o r m s . S e e S t r i c k l a n d ,1 0 4 S . C t .   a t 2 0 6 5 ;
H     e n le y v . S ta te , 9     6 0 S .W .2 d 5 7 2 , 5 7 9 (T e n n . 1 9 9 7 ); a n d G o a d , 9 3 8 S .W .2 d a t 3 6 9 .

                 In re v ie w in g c o u n s e l’s c o n d u c t, a “ fa ir a s se s sm e n t . . . re q u ire s th a t e v e ry e ff o rt b e m a d e to
e    lim in a te t h e d i s t o r t in g e f f e c t s o f h i n d s i g h t , t o r e c o n s t r u c t th e c i r c u m s t a n c e s o f c o u n s e l’ s
c    h a l le n g e d c o n d u c t, a n d to e v a lu a t e th e c o n d u c t fr o m c o u n s e l’ s p e r s p e c tiv e a t th e t im e .” S e e
S      tric k la n d , 1 0 4 S .C t. a t 2 0 6 5 . T h e f a c t th a t a p a r t ic u l a r s t r a t e g y o r t a c t ic f a i le d o r h u r t th e d e f e n s e ,
d     o e s n o t , s t a n d in g a lo n e , e s t a b li s h u n r e a s o n a b le r e p r e s e n t a t i o n . H o w e v e r , d e f e r e n c e t o m a t te r s o f
s   t r a t e g y a n d t a c t i c a l c h o i c e s a p p li e s o n l y i f t h e c h o i c e s a re in f o r m e d o n e s b a s e d u p o n a d e q u a t e
p     re p a ra tio n . S e e G o a d , 9 3 8 S .W .2 d a t 3 6 9 ; H e lla rd v . S ta te , 6 2 9 S .W .2 d 4 , 9 (T e n n . 1 9 8 2 ); A lle y ,
9     5 8 S . W .2 d a t 1 4 9 ; a n d C o o p e r v . S t a te , 8 4 7 S . W .2 d 5 2 1 , 5 2 8 ( T e n n . C r im . A p p . 1 9 9 2 ) .

        Further, the petitioner’s burden of proof in all post-conviction cases filed after May 12,
1995, is one of clear and convincing evidence, see Tenn. Code Ann. § 40-30-210(f), and
reviewing courts must indulge a strong presumption that counsel’s conduct falls within the range
of reasonableness. Finally, the trial judge’s findings of fact on post-conviction hearings are
conclusive on appeal unless the evidence preponderates otherwise. See Butler, 789 S.W.2d at
899; Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s findings
of fact are afforded the weight of a jury verdict, and this Court is bound by the findings unless
the evidence in the record preponderates against them. See Henley, 960 S.W.2d at 578. That
burden lies with the petitioner. See id. at 579.

              H e re , th e tria l c o u rt m a d e c le a r a n d c o g e n t fin d in g o f fa c ts a n d th e re c o rd s u p p o rts th o s e
f i n d in g s . W h e n a c l a i m o f in e f f e c t i v e n e s s d e p e n d s u p o n w h a t w i t n e s s X o r Y w o u ld h a v e t e s t i f i e d
t o , t h e n it i s i n c u m b e n t u p o n th e p e t i t i o n e r t o h a v e t h o s e w i t n e s s e s t e s t i f y a t t h e p o s t - c o n v ic t i o n
h e a r in g w h e n p o s s ib le . S e e B la c k v . S ta te , 7 9 4 S . W .2 d 7 5 2 , 7 5 7 ( T e n n . C r im . A p p . 1 9 9 0 ) .
O th e rw is e , t h e t r ia l c o u r t s a r e l e f t w i th o n l y t h e b a r e a l le g a t io n s o f t h e p e t it io n e r o r a s e c o n d - h a n d
a c c o u n t o r b e s t g u e s s a s to w h a t t h e w i t n e s s e s w o u l d o r w o u l d n o t h a v e s a id . S u c h is i n s u f f i c i e n t
p ro o f to c a rry th e p e titio n e r’s b u rd e n o f s h o w in g in e ffe c tiv e n e s s o f c o u n s e l. T h e r e fo r e , th e
p e titi o n e r h a s fa ile d to d e m o n s tr a te th a t th e tr ia l c o u rt e rr e d in its fi n d in g s o f f a c t.

                W e h a v e f u r th e r re v i e w e d t h e c l a im s o f th e p e tit i o n e r a s re la te s to h is a s s e rtio n s th a t tr ia l
 c o u n s e l fa ile d to in f o r m h i m o f t h e r a n g e o f p u n i s h m e n t p r i o r t o h i s o p t in g f o r t r ia l , t h e f a i lu r e o f
c o u n se l to e x p lo it a lle g a tio n s th a t th e ra p e v ic tim h a d tw o y e a rs p re v io u s ly m a d e a s im ila r c la im o f
r a p e , a n d c o u n s e l’ s fa ilu r e to t a k e s te p s t o s t o p t h e p r o s e c u t i o n f r o m l e a d i n g s t a t e w i t n e s s e s . F i r s t ,
i n h i s p o s t - c o n v ic ti o n h e a r i n g , t h e u n c o r r o b o r a te d te s t i m o n y o f a p e t i t i o n e r i s n o t s u f f i c i e n t to c a r r y
t h e b u rd e n o f p r o o f w h e re th e ju d g m e n t i s r e g u la r u p o n i ts f a c e a n d e n t i t l e d to t h e p re s u m p t i o n o f
v a lid ity . S e e S ta te v . K e r e ly , 8 2 0 S .W .2 d 7 5 3 , 7 5 7 (T e n n . C r im . A p p . 1 9 9 1 ). S e c o n d , in th e in s ta n t
 c a s e tria l c o u n s e l o ff e re d te s tim o n y w h ic h , i n f a c t , c o n t r a d i c t e d t h e a s s e r t io n s o f t h e p e t it io n e r .
  Q u e s t i o n s c o n c e r n i n g t h e c r e d ib i l i t y o f w i t n e s s e s a n d th e w e ig h t a n d v a l u e to b e g iv e n to t h e ir
 te s tim o n y w a s re s o lv e d b y th e tria l c o u rt, n o t th is C o u rt . S e e H e n le y v . S ta te , 9 6 0 S .W .2 d a t 5 7 9 ;
  B l a c k v . S t a t e , 7 9 4 S . W .2 d a t 7 5 5 . T h e b u rd e n o f e s t a b li s h i n g th a t th e e v i d e n c e p re p o n d e r a te s
                                                                                        4
o t h e r w i s e o n th e p e titi o n e r. S e e H e n l e y , 9 6 0 S . W .2 d a t 5 7 9 ; B la c k , 7 9 4 S . W .2 d a t 7 5 5 . H e re to , t h e
p e titio n e r h a s fa ile d to d e m o n s tr a te th a t th e tr ia l c o u rt e rr e d . F o r th e s e r e a s o n s , w e a f f ir m th e o r d e r
d is m is s in g th e p e titi o n fo r p o s t- c o n v ic tio n re lie f.


                                                                   Conclusion

           Accordingly, the order dismissing the petition is affirmed.




                                                                                   ___________________________________
                                                                                   JOHN EVERETT WILLIAMS, JUDGE




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