           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        FEBRUARY 1998 SESSION
                                                   FILED
                                                     April 21, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
ROBERT L. HOWELL,               )
                                )    C.C.A. NO. 02C01-9705-CR-00194
           Appellant,           )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. BERNIE WEINMAN,
STATE OF TENNESSEE,             )    JUDGE
                                )
           Appellee.            )    (Post-conviction)



FOR THE APPELLANT:                   FOR THE APPELLEE:


WILLIAM L. JOHNSON                   JOHN KNOX WALKUP
50 North Front St.                   Attorney General & Reporter
Suite 1150
Memphis, TN 38103                    CLINTON J. MORGAN
                                     Counsel for the State
                                     425 Fifth Ave., North
                                     Cordell Hull Bldg., Second Fl.
                                     Nashville, TN 37243-0493

                                     JOHN W. PIEROTTI
                                     District Attorney General

                                     GLEN BAITY
                                     Asst. District Attorney General
                                     201 Poplar St., Suite 301
                                     Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                          OPINION



                Following a jury trial, the petitioner was convicted on October 22, 1992, of

felony murder. This Court affirmed his conviction on October 13, 1993, and the Supreme

Court denied his application to appeal on March 7, 1994.1 On April 11, 1996, the

petitioner filed a petition for post-conviction relief alleging ineffective assistance of

counsel. After a hearing on November 15, 1996, the trial court dismissed the petition.

The petitioner now appeals and argues that his petition should not have been dismissed.

After a review of the record and applicable law, we affirm the judgment of the court below.



                We will briefly recite the facts surrounding the petitioner’s conviction. The

petitioner and his wife, Rose Howell, were estranged and Howell had been living with the

victim, Christopher Garlock. Evidence at trial revealed that the petitioner shot the victim

and took his wallet. The petitioner was convicted of felony murder and was sentenced

to life imprisonment.



                In this post-conviction proceeding, the petitioner makes several allegations

of ineffective assistance against his trial counsel, Joseph Patterson. He alleges that

Patterson failed to interview alibi witnesses, failed to fully investigate his case, failed to

prepare an alibi defense, failed to fully prepare for trial, failed to suppress two of the

petitioner’s confessions, and failed to fully explain the petitioner’s right not to testify at

trial.



                At the post-conviction hearing, the petitioner testified that Patterson had

been appointed to represent him. He alleged that Patterson failed to interview Jerry

         1
          State v. Ro bert L . How ell, No. 02C01-9211-CR-00249, Shelby County (Tenn. Crim. App. filed
Oct. 13 , 1993, at J acks on)(per m. to ap p. denied March 7, 1994).

                                                   2
Hudspeth, the petitioner’s uncle, about an alibi defense. He testified that Patterson told

him Hudspeth would not make a good witness because Hudspeth was an alcoholic. On

cross-examination, the petitioner admitted that Hudspeth had made a statement to the

police in which he said the petitioner had admitted killing the victim.



              The petitioner next testified that Patterson had not fully investigated his

case. He alleged that Patterson had failed to talk to Rose Howell, the petitioner’s wife.

He testified that had Patterson talked to Rose Howell, she could have told him where the

victim had been on the night he was killed. However, when questioned further, the

petitioner later admitted that he did believe Patterson had spoken to Rose Howell but that

he did not know the result of that conversation.



              The petitioner further testified that Patterson had not listened to him. He

stated that his case “just [ ] wasn’t investigated.” He asserted that Patterson had failed

to have ballistic tests performed on the bullet that killed the victim. He further asserted

that Patterson had failed to have the victim’s wallet tested for fingerprints.



              The petitioner next asserted that he had known one of the jurors on the jury

panel that ultimately found him guilty. He said it had not been until after the trial that he

had informed Patterson of this. He testified that he had not realized he had known the

juror while at trial because the two had only worked together a short time.



              The petitioner also complained that Patterson failed to get his two

confessions suppressed. He testified that the confessions had been illegally coerced

from him. However, he admitted that Patterson had filed a motion to suppress these

confessions and that a hearing on the motion had been held.                 The trial court



                                             3
subsequently denied the motion.



              Patterson, a former Shelby County prosecutor and later public defender,

testified that he had spoken with the petitioner on many occasions prior to trial. He

stated, “We talked considerably, went over the evidence, went over the proof, talked,

what I call trial strategy, over a period of several months.” He testified that during his

representation of the petitioner he had kept a log of his activities. He testified that he had

spent thirty and a half hours in court and eighty-four hours out of court.



              Patterson testified that he specifically remembered speaking to Hudspeth,

the petitioner’s uncle. He said he had spoken with him two or three times and that

Hudspeth had had a drinking problem. He further testified that he and Hudspeth had

discussed an alibi defense and that he had also discussed the defense with a girlfriend

of the petitioner. However, he had determined that the alibi defense was not a “proper

defense in the case.” Patterson said he had been aware of Hudspeth’s statement to the

police and had shown the petitioner a copy of the statement.



              Patterson further testified that an investigator had been assigned to this

case. He said his notes reflected that the investigator had talked to several people who

were familiar with the situation between the petitioner and the victim. He testified that

these people had all told the investigator that the petitioner had made several threats

against the victim. Patterson also said that he had talked to the petitioner’s wife, Rose

Howell, and had determined that she could add no favorable testimony.



              As to the ballistic tests, Patterson testified that they were not performed

because there had been no gun with which to match the bullet. As to fingerprinting,



                                              4
Patterson testified that he had not had the wallet tested because he “didn’t want to turn

up more evidence that would incriminate [his] client . . . .” Also, the petitioner had told the

police that he had the victim’s wallet and that with the money from the wallet he had

purchased some beer and clothing.



              Patterson further testified that the petitioner had told him that he knew a

member of the jury, but had not done so until after the trial. As to the petitioner testifying,

Patterson said he could not remember the exact details surrounding the petitioner’s

decision not to take the stand. However, Patterson did voir dire the petitioner outside the

presence of the jury to make sure he understood his right not to testify.



              In post-conviction relief proceedings the petitioner has the burden of proving

the allegations in his [or her] petition by a preponderance of the evidence.” McBee v.

State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings

of the trial court in hearings “are conclusive on appeal unless the evidence preponderates

against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).



              This Court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation,

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to

have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.

1980).



              In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services



                                              5
rendered by the attorney are within the range of competence demanded of attorneys in

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

claim of ineffective counsel, a petitioner “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); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



             In this case, the post-conviction court found that Patterson had spoken to

witnesses about a possible alibi defense and had concluded that this would not be a

viable defense for the petitioner.      The post-conviction judge stated that such a

determination was a tactical decision. The judge further concluded that Patterson had

interviewed all potential witnesses and had spent a considerable amount of time on the

case.



             As to the petitioner’s confessions to the police, Patterson had done what

he could. The court found that a motion to suppress the statements had been filed in a

timely manner. This motion was simply denied by the trial court. The post-conviction

court also found that the ballistic tests were not performed because no gun was ever

found and that fingerprint tests were not performed out of fear the tests would produce

more evidence against the petitioner.



             The post-conviction judge concluded, “The Court finds that Mr. Patterson

and the Public Defender Staff thoroughly investigated the case, interviewed all the

witnesses whose names were given them by the [petitioner] and talked with all of the

State’s witnesses. . . . The Court finds that the advice given and services rendered by



                                            6
the [petitioner’s] counsel was within the range of competency demanded by an attorney

in a criminal case and that Mr. Patterson’s representation of the [petitioner] at his trial

complied with the requirements set out by the Supreme Court of Tennessee in Baxter v.

Rose, 523 S.W.2d 930.”



               The record fully supports the findings of the post-conviction court. The

petitioner has failed to carry his burden of proving his allegations by a preponderance of

the evidence. Furthermore, the evidence presented at the post-conviction hearing does

not in any way preponderate against the judgment of the court below. The petitioner

clearly did not receive ineffective assistance of counsel and thus we affirm the dismissal

of this petition.


                                                 _________________________________
                                                 JOHN H. PEAY, Judge




CONCUR:



______________________________
JOSEPH B. JONES, Judge



______________________________
THOMAS T. WOODALL, Judge




                                            7
