             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            JANUARY 1997 SESSION
                                                            May 29, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk


RICHARD DUANE CARROLL,             )    No. 03C01-9603-CR-00139
                                   )
      Appellant                    )
                                   )    HAMILTON COUNTY
V.                                 )
                                   )    HON. DOUGLAS A. MEYER,
STATE OF TENNESSEE,                )    JUDGE
                                   )
      Appellee.                    )    (Post-Conviction)
                                   )
                                   )



For the Appellant:                      For the Appellee:

Gregory D. Smith                        John Knox Walkup
One Public Square                       Attorney General and Reporter
Suite 321
Clarksville, TN 37040                   Clinton J. Morgan
(On appeal)                             Assistant Attorney General
                                        450 James Robertson Parkway
William A. Dobson, Jr.                  Nashville, TN 37243-0493
Assistant Public Defender
701 Cherry Street
Suite 300                               William H. Cox, III
Chattanooga, TN 37402                   District Attorney General
(At hearing)
                                        Leland Davis
                                        Assistant District Attorney
                                        600 Market Street
                                        Suite 310
                                        Chattanooga, TN 37402



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                         OPINION


       The appellant, Richard Duane Carroll, appeals as of right the denial by the

Hamilton County Criminal Court of his petition for post-conviction relief. Appellant’s

only issue on appeal is whether he received the effective assistance of counsel prior

to entering his plea of guilty. Finding no merit to appellant’s claims, we affirm the trial

court’s denial of relief.

       Appellant was indicted for the first-degree premeditated murder of Ronald

Potter. Apparently, appellant was living with the victim’s mother and shot the victim

late one night inside the trailer where they were living. The victim was shot once

between the eyes and appellant fled the scene in his van.

       Pursuant to a plea agreement, appellant pled guilty to second degree murder

on October 4, 1994. The plea agreement recommended a sentence of fifteen to

twenty years with twenty years being the maximum sentence that appellant could

receive. The trial court later sentenced appellant to the agreed upon maximum as a

Range I offender.

       Appellant filed his pro se post-conviction petition on June 1, 1995, alleging the

ineffective assistance of counsel. After the appointment of counsel, an amended

petition was filed alleging the same ground for relief. In the petition, appellant claimed

that counsel failed to interview the witnesses he suggested, advised him incorrectly

about the law of self-defense, and that counsel generally failed to prepare for trial or

investigate appellant’s case. At the evidentiary hearing, appellant’s specific

complaints were that counsel did not talk with him enough before the plea and that he

failed to inform him of the State’s proof. More importantly, he stated that the crux of

his petition was that counsel failed to interview certain witnesses who had information

concerning the victim’s character.

       After hearing appellant’s testimony and comparing it with the testimony of his

former counsel, the trial court remarked that a decision on appellant’s petition rested


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upon the credibility of the witnesses. It recognized that the State’s proof against

appellant was strong, but acknowledged counsel’s willingness to take appellant’s case

to trial had he chosen to do so. The court then found that counsel’s testimony was

more credible and that counsel provided effective assistance.

       In reviewing the appellant’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

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

ineffective counsel, an appellant “must show that counsel’s representation fell below

an objective standard of reasonableness” and that this performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052,

2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.

Crim. App. 1985). The inability to prove either prong results in failure of the claim.

See Strickland, 466 U.S. at 697.

       The most difficult burden on an appellant is demonstrating the prejudice he has

suffered by the alleged error. In order to prevail on that ground, the appellant must

show a reasonable probability that but for counsel’s error the result of the proceeding

would have been different. Id. In the context of a guilty plea, the appellant must

show that but for counsel’s errors he would not have pled guilty and would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 53, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). See also Wade v. State, 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995),

perm. to appeal denied (Tenn. 1995); Wilson v. State, 899 S.W.2d 648, 653 (Tenn.

Crim. App. 1994), perm. to appeal denied (Tenn. 1995).

       In order to sustain his post-conviction petition, the appellant must prove his

allegations of fact by clear and convincing evidence. Tenn. Code Ann. §40-30-210(f)

(Supp. 1996). Upon review, this Court cannot re-weigh or re-evaluate the evidence.

We give deference to questions about the credibility of the witnesses, the weight and

value to be given their testimony, and the factual issues raised by the evidence as

                                            3
they are resolved by the trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App. 1990). Furthermore, the factual findings of the trial court are conclusive on

appeal unless the evidence preponderates against the judgment. Id. See also Davis

v. State, 912 S.W.2d 689, 697 (Tenn. 1995) (citations omitted); Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citation omitted).

      According to appellant, his main contention is that counsel failed to interview

certain witnesses who could have provided information about the victim’s character.

The petition names five witnesses who would have provided such information.

Appellant argues that such information was highly relevant to a theory of self-defense.

He does admit, however, that these witnesses were not present when the shooting

occurred and could not have provided any firsthand accounts of the incident.

       Appellant’s counsel from the guilty plea hearing testified that appellant did

provide him with the names of several witnesses. In particular, he remembered that

one visited his office and they talked for about 30 to 45 minutes. After their

conversation, he determined that the person had very little information that would have

been helpful to appellant. Counsel could not specifically remember whether this

person provided any information about the character of the victim.

       Thomas James, one of the witnesses listed in the petition for relief, testified at

the evidentiary hearing. James stated that he had worked on construction with the

appellant and had visited the trailer where he lived on four or five occasions.

However, he stated that he “barely did know the people.” More importantly, he

testified that he did not know the victim and he was never at the trailer when the victim

was present. Jones’ testimony clearly demonstrates that appellant suffered no

prejudice from counsel’s failure to interview this witness. Jones simply had no

information benefitting appellant.

       The remaining four witnesses named in the petition did not testify at the

evidentiary hearing. Post-conviction counsel explained that two other witnesses were

subpoenaed, but failed to appear at the hearing and one other witness lived in

                                            4
Georgia and could not be subpoenaed. The trial court stated that their unwillingness

to appear at an evidentiary hearing likely meant that they would not have appeared at

a trial for appellant.

       Without the benefit of the proposed testimony of the witnesses, we are unable

to determine whether appellant suffered any prejudice. In order to establish prejudice

from counsel’s failure to interview witnesses, the witnesses must be presented at the

evidentiary hearing to demonstrate what information he or she possessed. Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In the absence of such

testimony, the trial court is left to speculate on the substance of the testimony and

whether it would have affected the outcome of appellant’s case. Id. Appellant has

failed to fulfill an essential element of the Strickland test on this issue.

       As an aside, we must question the relevancy of these witnesses’ proposed

testimony. Much like Thomas Jones, it is unlikely that they would have possessed any

information relative to appellant’s proposed self-defense claim. The trial court asked

appellant to describe what these witnesses would have said. Appellant replied that

they would have testified that “the boy was coming in and out.” We are unable to

determine, as was the trial court, what bearing this information would have had on

appellant’s case. Proof of such questionable relevance is not clear and convincing

evidence that appellant suffered prejudice, i.e. that he would have chosen to go to trial

in light of this information.

       Moreover, the record reflects that counsel was working in pursuit of appellant’s

defense. Counsel testified that he and appellant discussed the victim’s mental

condition extensively and that he obtained some medical records pertaining to the

victim’s mental health. Merely because counsel used a tactic different from that

suggested by appellant in his defense does not render his performance deficient.

The proof that counsel investigated the victim’s mental state and obtained medical




                                              5
records provided much more credible information for appellant’s defense and supports

the adequacy of counsel’s performance.1 This issue is without merit.

         Appellant also claims that counsel did not meet with him enough prior to the

entry of his plea, nor was counsel interested in his version of the facts. According to

appellant, counsel only met with him at the jail twice and spoke with him for fifteen

minutes on each occasion. However, counsel testified that he and appellant “had a

number of conversations,” although he could not recall how many times he visited

appellant. Counsel was aware of appellant’s version of the incident because he

reviewed the statement appellant gave to police and then talked with appellant about

its substance. Furthermore, counsel testified that he and appellant thoroughly

discussed self-defense and the defense of accident. The trial court has the duty of

resolving conflicting testimony at evidentiary hearings and credited counsel’s

testimony on this issue. Such a determination is within the exclusive purview of the

trial court and we will not disturb such a finding. Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990).

         Appellant’s last complaint is that counsel did not provide him with any

information about the State’s case against him. He testified that he was unaware of

who the State’s witnesses would have been, he did not see the autopsy report or any

police reports, nor did he know if a weapon was found on the victim. In contrast, the

record indicates that appellant in fact did possess the requisite information about the

State’s case which was necessary to make an informed decision.

         Appellant was present at his preliminary hearing during which he would have

heard a portion of the State’s proof. In addition, the State presented the trial court

with a synopsis of its proof at the guilty plea hearing. At that hearing, appellant



         1
          Other portions of counsel’s testimony reinforce this conclusion. Counsel testified that appellant
had not decided, prior to entry of his plea, whether the shooting was done in self-defense or if it was
merely an accident. Understandably, this made it difficult for counsel to construct a definite plan of
defens e and re ndered testimo ny from witnesse s abou t the victim ’s chara cter of qu estionab le relevanc e.
Bec aus e the re is p roof that c oun sel w as pu rsuin g app ellant ’s def ens e, we cann ot sa y that c oun sel’s
actions in th is regard were de ficient.

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testified that he had read the indictment and understood the charges. Moreover,

appellant had given a statement to law enforcement officials admitting to the shooting

and professing hatred of the victim. This, in and of itself, likely constituted a large

portion of the State’s case. Contrary to his contention, it appears that the appellant

was well-informed about the case against him and wisely chose to accept the plea

agreement in light of the substantial proof possessed by the State. Appellant’s

testimony in this regard does not rise to the level of clear and convincing evidence of

counsel’s deficient performance.

       In sum, appellant has failed to demonstrate by clear and convincing evidence

that he would have chosen to go to trial had it not been for the deficient performance

of counsel. In accordance with the trial court’s ruling, we find that counsel rendered

effective assistance and that appellant’s constitutional rights were not infringed. We

affirm the denial of post-conviction relief.



                                                   _______________________________
                                                   William M. Barker, Judge



____________________________
Joseph M. Tipton, Judge



____________________________
Curwood Witt, Judge




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