         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 17, 2001

            ERIC BERNARD HOWARD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                            No. 95-d-2451   Seth Norman, Judge



                    No. M2001-00405-CCA-R3-PC - Filed October 24, 2001


The Defendant, Eric Bernard Howard, was convicted of two counts of aggravated robbery in the
Criminal Court of Davidson County and sentenced to consecutive terms of seventeen years for each
conviction. The Defendant now seeks post-conviction relief alleging that he was denied effective
assistance of counsel. The trial court denied relief. We affirm.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY,
JJ., joined.

Radford H. Dimmick, Nashville, Tennessee, for the appellant, Eric Bernard Howard.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Shelli Neal, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        Following a jury trial, the Defendant was found guilty of two counts of aggravated robbery.
The Defendant appealed his convictions for aggravated robbery arguing (1) the trial court erred in
excluding social security disability information as irrelevant, (2) the evidence was insufficient to
support the convictions, and (3) incompetency by reason of narcotic addiction is a defense to
aggravated robbery. This court affirmed the judgment of the trial court. See State v. Eric Bernard
Howard, No. 01C01-9805-CR-00198, 1999 WL 701413, at *5 (Tenn.Crim.App., filed September
10, 1999, at Nashville). The Defendant then filed a petition for post-conviction relief, and the trial
court conducted an evidentiary hearing on the petition. At the hearing, the Defendant posited that
he was denied effective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution and Article 1, Section 9 of the Tennessee Constitution due to trial counsel’s
failure to give the State notice of a possible insanity defense and trial counsel’s failure to make an
offer of proof with regard to the evidence establishing the insanity defense. On the same day, the
trial court denied the Defendant’s request for post-conviction relief. In his appeal, the Defendant
contends that the trial court improperly denied his petition for post-conviction relief.

                                      STANDARD OF REVIEW
        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. Tenn. Code Ann. § 40-30-
210(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not
reweigh or reevaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon, 18 S.W.3d at 156; Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence
preponderates against those findings. Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79.


                        INEFFECTIVE ASSISTANCE OF COUNSEL
        Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the
Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This
right to counsel includes the right to effective counsel. See Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936; Strickland v. Washington, 466 U.S. 668, 686 (1984).

       To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the
burden of showing that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the
defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns, 6
S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had
reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This
reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see
also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn.
Crim. App. 1999).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they
were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983
S.W.2d at 246.




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        In denying the Defendant’s petition, the trial court found that the Defendant had not
established that trial counsel’s performance was deficient. The trial court specifically found that no
evidence supported an insanity defense and trial counsel could not be faulted for failing to advance
an unsupported defense. The Defendant’s apparent contention that the Social Security
Administration’s decision that he was disabled under its guidelines due to his addiction to drugs
entitled him to an insanity defense is unfounded. See Howard, 1999 WL 701413, at *5.

         To establish a defense based on insanity, a defendant must prove by clear and convincing
evidence that “at the time of the commission of the acts constituting the offense, the defendant, as
a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of
[the] acts.” Tenn. Code Ann. § 39-11-501(a). Furthermore, a mental disease or disability does not
constitute a defense unless it renders the defendant incapable of appreciating the wrongfulness of his
or her actions. Id. The Defendant presented no evidence to suggest that, at the time the two
robberies were committed, he could not appreciate the wrongfulness of his acts. The Defendant’s
bare assertion that he is entitled to an insanity defense because of his alleged disability was rejected
by this Court on direct appeal, and certainly does not demonstrate that he received ineffective
assistance of counsel at his trial. See Howard, 1999 WL 701413, at *5.

       The record supports the trial court’s finding that trial counsel was not deficient by failing to
advance an insanity defense or make an offer of proof regarding the basis for such a defense.
However, even if the actions of trial counsel were inadequate, the Defendant has not presented any
evidence to establish that the alleged errors by trial counsel prejudiced him.

                                          CONCLUSION
        Accordingly, the trial court properly denied the Defendant’s petition for post-conviction
relief. The judgment of the trial court is AFFIRMED.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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