          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE                FILED
                        FEBRUARY SESS ION, 1998             August 31, 1998

                                                     Cecil Crowson, Jr.
GREGORY SCOTT SPOONER )         C.C.A. NO. 03C01-9608-CR-00283 Clerk
                                                     Appellate C ourt

                     )
    Appe llant,      )
                     )
                     )          HANCOCK COUNTY
VS.                  )
                     )          HON. JAMES E. BECKNER
STATE OF TENNESSEE,  )          JUDGE
                     )
    Appellee.        )          (Post-Co nviction Re lief)




FOR THE APPELLANT:              FOR THE APPELLEE:

HERBERT HOLCOMB                 JOHN KNOX WALKUP
101 Church Street               Attorney General and Reporter
Rogersville, TN 37857
                                PETER M. COUGHLAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0493

                                C. BERKELEY BELL
                                District Attorney General

                                FLOYD W. RHEA
                                Assistant District Attorney
                                North Court Street
                                Sneedville, TN 37869



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                        OPINION

       Appellant Grego ry Scott S poone r appea ls the trial cou rt's denial of his petition

for post-co nviction relief. He presents the following issue for review: whether the

trial court erred in denying Appellant's petition for post-conviction relief based upon

the ine ffective a ssista nce o f trial cou nsel.

       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                              I. FACTUAL BACKGROUND

       The trial court appointed Attorney John Anderson to represent Appellant at

trial. On April 28, 1993, Appellant was convicted by a jury in the Hancock Coun ty

Criminal Court of six counts of rape and one count of exhibiting materia l harmfu l to

a minor. Appellant was sentenced as a multiple rapist to an effective sentence of

forty-eight years incarceration with the Tennessee Department of Correction.

Appellant's appeal of his conviction to this Court was dismissed because he had

escaped from custod y.

       On November 13, 1995, Appellant filed a pro se petition for post-conviction

relief, alleging, inter alia , ineffective assistance of trial counsel. Following a hearing,

the trial court denied Appellant's application for post-conviction relief on December

8, 1995. In so doing, the court concluded that Attorney John Anderson performed

well within the range of competence and that Appellant had not demonstrated the

manner in which he was prejudic ed by th e alleg ed de ficienc ies in co unse l's

representation.

       Specifically, Appellant alleges the following deficiencies in his tria l coun sel's

representation:

               (1) failur e to ad equa tely con sult with Appe llant prio r to trial;


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                (2) failur e to pre pare A ppella nt to tes tify at trial;
                (3) failure to investig ate Ap pellan t's claim that law enforcement
                officials illegally obtained statements from him;
                (4) failure to cons ult sufficie ntly with Appellant during the jury selection
                process;
                (5) failure to d iscuss th e State's evidenc e with Ap pellant;
                (6) failure to interview any of the prosecution's witnesses prior
                to trial; and
                (7) failure to ask the questions that Appellant desired.



                               II. POST-CONVICTION RELIEF

        Appellant contends tha t the trial court erred in denying his petition for post-

convic tion relie f base d upo n the in effective assista nce o f trial cou nsel.

        In post-conviction proceedings, the Appellant bears the burden of proving the

allegations raised in the petition by a preponderance of the evidence.1 Tidwell v.

State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wade v. State, 914 S.W.2d 97, 101

(Tenn. Crim. App. 1995). Moreover, the trial court's findings of fact are conclusive

on appea l unless the evidenc e prepo nderate s agains t the judgm ent. Tidw ell, 922

S.W.2d at 500; Cam pbell v. State , 904 S.W .2d 594 , 595-96 (Tenn . 1995); Cooper

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



                      A. EFFECTIVE ASSISTANCE OF COUNSEL

        Appe llant's only cla im is tha t the trial court e rred in denying his petition for

post-conviction relief ba sed u pon th e alleg ation th at he re ceived ineffec tive

assist ance of trial co unse l.

        The Sixth Amendment provides in part, "In all criminal prosecutions, the

accused shall enjoy the right. . . to have the assis tance o f counse l for his defen se."

U.S. Const. amend. 6.             Similarly, the Tennessee Constitution guarantees an


   1
     For post-conviction claims filed after May 10, 1995, the burden of proof is by clear and convincing
evidenc e. See Tenn . Code A nn. § 40- 30-210 (f); Scott v. Sta te, 936 S.W.2d 271, 274 (Tenn. Crim. App.
1996).

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accused "the right to be heard by him self an d his couns el. . . " Tenn. C onst. art. I

§ 9. Additionally, Tenn. Code Ann. § 40-14-102 provides: "Every person accused

of any crime or m isdemea nor whatso ever is entitled to couns el in all matters

neces sary for su ch pers on's defe nse, as w ell to facts as to law."

      In Strickland v. Washington, the United States Supreme Court articulated a

two-prong test for courts to employ in evaluating claims of ineffective assistance of

counse l. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee

Supreme Court adopted Strickland's two-part test in Butler v. State, 789 S.W.2d

898, 899 (Tenn. 1990). The Strickland Court began its analysis by noting that "The

benchm ark for judg ing an y claim of ineffe ctivene ss m ust be wheth er cou nsel's

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at

2064. When a convicted defendant challenges the effective assistance of counsel

in a post-conviction pro ceeding, the A ppellant bears the burden of establishing (1)

deficient representation of counsel and (2) prejudice resulting from that d eficiency.

Strickland, 104 S.C t. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 1996).    Appellant must prove that counsel's representation fell below an

objective standa rd of reas onable ness. Strickland, 104 S .Ct. at 2 064. T his Co urt is

not required to consider the two prongs of Strickland in any pa rticular orde r. Harris

v. State, 947 S.W .2d 156, 163 (Tenn. Crim . App. 1996 ). "Moreover, if the Appellant

fails to establish one prong, a reviewing co urt need not cons ider the oth er." Id.

With regard to counse l's deficient performance, the proper measure is that of

reasonableness under p revailing pro fessiona l norms . Id. (citing Strickland, 104

S.Ct. at 2065. P ut differently, counsel's performance is required to be "within the

range of compe tence dem anded of a ttorneys in criminal ca ses." Baxter v. Rose,

523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d at 163. Respecting the

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preju dice prong o f Strickland, the Appellant must establish that "there is a

reaso nable proba bility that, b ut for co unse l's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a proba bility

sufficient to undermine confidence in the outcom e." Strickland, 104 S.Ct. at 2068.

       The Strickland Court emphasized that "Judicial scrutiny of counsel's

performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . .

requires that every effort be ma de to elim inate the d istorting effec ts of hindsig ht, to

reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from co unsel's p erspec tive at the tim e.'" Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 206 5). The mere fa ilure of a

particular tactic or strategy does not per se establish unreasonable representation.

Id. at 369. Ho wever, this Court w ill defer to counsel's tactical and strategic choices

only where those choices are informed ones predicated upon adequ ate preparation.

Goad, 938 S.W .2d at 369 ; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

       Regarding Appe llant's first alleged deficiency, he specifically complains that

Mr. Anderson consulted with him only two or three times prio r to trial. However, at

the post-conviction hearing, Attorney Anderson testified that h e met w ith Appellant

to discuss the ca se eight or nine tim es prior to trial. Moreover, couns el broug ht with

him to the hearing fifteen to twenty pa ges of no tes taken by him d uring sev eral visits

with Appellant. Mr. Anderson's copious notes belie Appellant's assertion that he

had little or no contact with his atto rney p rior to the com men cem ent of th e trial.

Cou nsel’s pretrial con tacts with A ppellant a ppear to have affo rded him ad equate

opportu nity to prepare Appellant’s case. Moreover, Appellant has failed to even

allege how he was prejudiced by counsel’s number of visits.

       Appe llant's second claim of ineffective assistance of counsel is that Attorney

Anderson inadequately prepared Appellant to testify at trial. At the hearing on the

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petition for post-conviction relief, Attorn ey Anderson stated tha t he review ed with

Appellant all of the evidence which the pros ecution had against him. A dditionally,

Mr. Anderson testified that during one meeting with Appellant, he inquired about

Appe llant's background, the circumstances leading up to the offense, and the

particulars of the case. To buttress this testimony, Anderson produced ten pages

of handw ritten notes taken du ring this co nferenc e with Ap pellant.          Attorney

Anderson testified that h e attem pted to prepare Appellant for the questions that Mr.

Anderson believed would be posed to Appellant on cross-examination so that

Appellant would have suitable res ponses.          A s support for this testim ony, Mr.

Anderson produ ced a pprox imate ly ten pages of his handwritten notes taken during

this conference with Appellant.       The trial court properly concluded that "Mr.

Anderson spent a great deal of time preparing the case and discussing the case

with the petitioner. He prepared for trial, leaving no stone unturned." Thus, we find

that Appellant has not carried his bu rden o f provin g that M r. And erson inade quate ly

prepared him to tes tify at trial and tha t the outco me of Appe llant's trial was

prejudiced by any alleged lack of preparedness.

       Respecting Appellant's third alleged deficienc y, he asserts that Mr. Anderson

never conducted any investigation of Appellant's claim that law enfo rcem ent offic ials

illegally obtained Ap pellant's stateme nt.       At the post-con viction hearing, Mr.

Anderson explained that he did not file a motion to suppress the statement taken

from Appellant because Appellant, before trial, never indicated that he gave the

statement unwillingly and because Appellant signed waiver of rights and waiver of

counsel forms. Furthermore, Mr. Anderson stated that Appellant stated that he had

"tried to cooperate" with the police and "had nothing to hide" because he had not

done anything . The d ecision n ot to file a motion to suppress Appellant's statement

appears to have been a strategic choice predicated upon adequate investigation.

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See Goad v. State, 938 S.W.2d 263, 269 (Tenn. 1996). Nothing requires counsel

to file what he believes to be a frivolous motion to suppress. Because we find that

Appellant has not demonstrated that Mr. Anderson performed below the range of

competence demanded of an attorney in a criminal case or that he was prejudiced

by that pe rforman ce, the third alleged d eficiency is w ithout me rit.

       Appe llant's fourth claim of ineffective assistance is that Mr. Anderson failed

to consult sufficiently with Appellant during the jury selection process. Appellant

testified at the post-conviction hearing that Mr. Anderson did not question the

prospective jurors a bout th eir bac kgrou nd. Ho weve r, the tria l court s tated, "T his

court even re mem bers th e cas e well e noug h to rec all the p etitione r perso nally

cons ulting w ith his law yer du ring vo ir dire an d, in fac t, the rec ord will s how th at all

eight peremptory challenges were used during the course of voir dire." Thus,

Appellant has not overcome the trial court’s finding that Appellant particip ated fu lly

in the voir dire. Moreover, we cannot see how Appellant was prejudiced given Mr.

Anderson's apparently thorough examination of the prospective jurors.

       Appe llant's fifth complaint is that Attorney Anderson failed to discuss the

evidence which the State had against him.                Teddy Collingsworth, a criminal

investigator for the District Attorney, testified at the post-conviction hearing, that he

met with Mr. Anderson and "showed him all the evidence that we had, all the

statements, all the evidence that was taken from the home when the search warrant

was executed. . . ." Moreover, as mentioned above, Mr. Anderson averred that he

and Appellant together reviewed all the evidence against Appe llant. Th is issue is

without m erit.

       Regarding Appellant's sixth allege d deficiency, he co ntends that M r.

Anderson failed to interview an y of the pro secution 's witness es. Attorney Anderson

testified that he personally conducted interviews with all three of the victim's special

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education teachers, a Department of Huma n Services wo rker and her s upervisor,

and one of the victim's "foste r parents."           Attorney Anderson stated that he

interviewed witnes ses fo r App ellant's case each time he traveled to Sneedville--the

place where th e alleged offense w as com mitted. The trial court determined that Mr.

Anderson "talked to all possib le witness es." The record a mply su pports this finding

and we will not second guess it. There is no ineffectiveness on the part of counsel

proven here.

      Finally, Appellant complains that Mr. Anderson failed to question the

witnesses as Appellant desired. At the hearing on his petition for post-conviction

relief, Appellant testified that Mr. Anderson declined to ask the question s given to

him by App ellant, expla ining that th ose qu estions w ould cau se the w itnesses to

becom e angry. Mr. An derso n testifie d that h e reca lled as king a ll of the questions

that Appellant directed him to ask and that he could not remember refusing to ask

any of Appe llant's que stions. The trial court opined that Attorney Anderson

thorou ghly cross-examined witnesses.             In any event, the cross-examination of

witnesses is a matter entrus ted to the p rofession al judgm ent of the a ttorney. W e

will not second guess his tactical decisions.

      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
WILLIAM B. ACREE, SPECIAL JUDGE




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