        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE              FILED
                        APRIL SESSION, 1998          August 10, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9712-CR-00535
                           )
      Appellee,            )
                           )
                           )    SCOTT COUNTY
VS.                        )
                           )    HON. LEE ASBURY
ERIC CREEKMORE,            )    JUDGE
                           )
      Appe llant.          )    (Post-C onviction Relie f - Vo lunt ary
                           )    Manslau ghter)




FOR THE APPELLANT:              FOR THE APPELLEE:

MAX E. HUFF                     JOHN KNOX WALKUP
115 Litton Road                 Attorney General and Reporter
Oneida, TN 37841
                                TODD R. KELLEY
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                WILLIAM PAUL PHILLIPS
                                District Attorney General
                                P. O. Box 10
                                Huntsville, TN 37756



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       Appellant Eric C reekm ore ap peals the trial c ourt's d enial o f his petition for

post-conviction 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 coun sel.

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



                           I. FACTUAL BACKGROUND

       On July 8, 1996 Appellant plea ded guilty in the Sco tt County Crim inal Court

to voluntary manslaughter. He agreed to be sentenced as a Range III persistent

offender to fifteen years in carce ration w ith the Tennessee Department of

Correction. On No vemb er 17, 19 96, App ellant filed a pro se petition for p ost-

conviction relief. This petition was amended by appointed counsel on March 26,

1997. Following a hearing, the trial court dismissed Appellant's petition on

August 20, 1997.

       Specifically, Appellant alleges the following deficiencies in defense

counsel's representation:

              (1) Failure to keep confiden tial the locatio n of the kn ife used
              to kill Mr. Wayne Dolan;
              (2) failure to with draw from representing Appellant once
              counsel became aware that he could be a witness due to his
              involvement in the chain of custody of the knife;
              (3) failure to file a motion to suppress Appellant's statements;
              (4) failure to insist that Appe llant refuse the State's p lea offer and
              opt to g o to trial.




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                          II. POST-CONVICTION RELIEF

       Appellant contends that the trial court erred in denying his petition for p ost-

convic tion relie f base d upo n the in effective assista nce o f coun sel.

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

the allegations raised in the petition by clear and convincing evidence. Tenn.

Code Ann. § 4 0-30-21 0(f). See also Sco tt v. State, 936 S.W.2d 271, 272 (Tenn.

Crim. App. 1996). Moreover, the trial court's findings of fact are conclusive on

appeal unless the evidence prepond erates a gainst the judgm ent. Tidwell v.

State, 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594,

595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).



                    EFFECTIVE ASSISTANCE OF COUNSEL

       Appe llant's only contention o n this a ppea l is that th e trial co urt erre d in

denying his petition for post-conviction relief based upon Appellant's allegation

that he receive d ineffe ctive as sistan ce of c ouns el.

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

accused shall enjoy the right. . . to have the assista nce o f coun sel for h is

defens e."   U.S. C onst. a men d. 6.       Sim ilarly, the Tennessee Constitution

guarantees an ac cuse d "the rig ht to be heard by him self and his co unsel. . . "

Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme

Court articulated a two-pro ng test for c ourts to em ploy in eva luating claims of

ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Tennessee Supreme Court adopted Strickland's two-pa rt test in

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began

its analys is by no ting tha t "The benc hma rk for jud ging a ny claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

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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

proceeding, the Appellant bears the burden of establishing                (1) deficient

representation of counsel and (2) prejudice resulting from that deficien cy.

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

App. 1996 ). App ellant m ust pro ve that c ouns el's rep resen tation fe ll below an

objective standard of reaso nablen ess. Strickland, 104 S.C t. at 2064. Th is Court

is not requ ired to con sider the tw o prong s of Strickla nd in any particular 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 court need not consider the

other." Id. With reg ard to counsel's deficient performance, the proper m easure

is that of reaso nablen ess un der preva iling profes sional no rms.         Id. (citing

Strickland, 104 S.C t. at 2065). Put differently, counsel's performance is required

to be "within the rang e of comp etence dem anded of a ttorneys in criminal cases."

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn . 1975); Harris , 947 S.W.2d at 163.

Respecting the prejud ice prong of Strickland, the Appellant must establish that

"there is a reaso nable p robability that, but for counsel's unprofessional errors, the

result of the procee ding would h ave been d ifferent. A reas onab le prob ability is

a probability 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 e ffort be m ade to e liminate the distorting effects of h indsight,

to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to

evaluate the conduct from coun sel's perspe ctive at the tim e.'" Goad v. State, 938

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S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 20 65). The m ere

failure of a pa rticular tactic or strate gy doe s not p er se e stablis h unre ason able

representation. Id. at 369 . How ever, th is Cou rt will defer to counsel's tactical and

strategic choices only where those choices are informed ones predicated upon

adequate preparation. Goad, 938 S.W .2d at 369 ; Hellard v. S tate, 629 S.W.2d

4, 9 (Tenn. 1 982).

       Regarding Appellant's first alleged deficiency, he specifically complains

that Attorney Charlie Allen, Jr., rendered inadequate representation by (1)

discovering the location of the knife used to kill the victim; (2 ) having th e knife

brought to Allen's office; and (3) surrendering the knife to authorities. Both the

State and Ap pellant ag ree that once Attorney Allen was in possession of the

knife, he was bo th legally an d ethically o bliged to surrender it to police. H owever,

Appellant contends that his attorne y perform ed deficie ntly by taking steps to

procure the knife. Appellant claims that by procuring the weapon and giving it to

the authorities, counsel eviscerated any defense which Appellant may have had

and weakened Appellant's bargaining position in plea negotiations.

       Although the Ten nesse e Cod e of Professional Responsibility and the

standards demanded of criminal defense attorneys are not necessarily co-

extensive, the Code of Professional Responsibility does offer guidan ce as to the

approp riate standards of professionalism demanded in criminal cases. DR 7-

102(A) provides in part, "(A) In the representation of a client, a lawyer s hall not:

(3) Conc eal or k nowin gly fail to disclose that which the lawyer is required by law

to reveal." DR 7-1 02(A)(3).

       Attorney Allen testified at the post-conviction hearing that Appellant

"prob ably told me more lies. . . than any other client I've ever had." Allen stated

that App ellant said, b oth in his statements to police and in his initial statem ents

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to Mr. Allen, that Wayne Dolan had drawn the knife on Appellant and that

Appellant took the knife from Dolan and s tabbe d him . More over, A ppella nt told

the police that after stabbing Dolan, Appellant threw down the knife b efore he left

the tavern parking lot where the stabbing occurred. According to Mr. Allen, he

explained to Appellant that if the knife wa s, in fact, Do lan’s, then locating th e knife

would strengthen Appellant's case. This prompted Appellant to reveal that he

had hidden the knife near a water heater in Charlie Stephens' home in K entucky.

Mr. Allen telephoned Charlie Stephens and asked him to look for a kn ife in his

basement behind the water heater. Because of rumors that the victim had

human immunodeficiency virus (HIV), Mr. Allen directed Stephens to wear gloves

and to place the knife into a plastic ba g and s eal it.      Steph ens co mplied with

Attorney Allen's request to bring the knife to Allen's office. Mr. Allen telephoned

Detective Lewallen and told h im to com e and g et the knife .

       Contradicting Mr. Allen's testimony, Appellant stated that Mr. Allen cussed

Appellant and told App ellant that he knew that Appellant wa s lying. Therefore,

Appe llant disclos ed the loc ation of the knife.

       In its order dis missing Appella nt's petition, th e trial court c orrectly

concluded that Mr. Allen did not perform deficiently by discovering the location

of the knife and by having it brought to his office. Mr. Allen, operating under

information given him by Appellant to the effect that the weapon was the victim's,

made a reasonable strategic decision that turning over the knife to authorities

would strengthen Appellant's case and buttress his self-defen se theory.

Moreover, nothing in the record ind icates tha t the knife w as som ehow c rucial to

the prosecution.     Thus, Appellant has failed to demonstrate prejudice from

counsel's action.




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       Appe llant's second allegation of ineffective assistance of co unsel is that Mr.

Allen shou ld have withdrawn from representing Appellant once counsel became

aware that he po tentially cou ld be a witn ess du e to his invo lveme nt in the chain

of custody of the knife . DR 5-1 02(B) p rovides in p ertinent pa rt, "(B) If, after

undertaking employment in contemplated or pending litigation, a lawyer learns

or it is obvious that the lawyer. . . may be called as a witness. . . the lawyer may

continue the representation until it is apparent that the testimony is or may be

prejudicial to the client." DR 5-102(B). Attorney Allen testified that he was not

concerned that he w ould ha ve been in the cha in of custo dy had the case

proceede d to trial and had D etective Lewallen been called to testify. Hence, he

saw no need to withdraw from rep resenting Appella nt. Moreover, it is significant

that Mr. Allen discov ered th e loca tion of th e knife only be caus e App ellant to ld him

where it was hidden. Ultim ately, Appellant and the prosecution agreed upon a

plea bargain, thereby avoidin g trial. Thus, it is difficult to conclude that Appellant

was, in any way, prejudiced by Mr. Allen's failure to withdraw.

       Appellan t's third co mpla int is tha t Mr. Alle n sho uld ha ve filed a motio n to

suppress Appellant's statements. Appellant claims that he was intoxicated at the

time that he gave his statement. At the post-co nviction hearing, Appellant

conceded that the police administered the Miranda warnings to him and that he

signed a waiver of rights form before giving his statement. Be fore giv ing his

statem ent, Appellant denied being intoxicated. Detective Randy Lewallen of the

Scott Coun ty Sheriff's D epartm ent testified tha t when he too k App ellant's

statem ent, Appellant informed Lewallen that he had been drinking but was not

intoxicated.    Detective Lewallen further testified that because Appellant

"appeared to be on the verge of being intoxicated," Lewallen asked Appellant




                                            -7 -
several questions to ensure that Appellant was thinking clearly. Lewallen then

went forward with the interrogation.

       Mr. Allen explained that he did not move to suppress Appellant's statement

for two reasons . First, according to Allen, A ppellant advised him that he had

been properly Mirandized. Second, Appellant's statement was helpful to the

defense becau se App ellant's state ment in dicated th at he stabbe d the vic tim in

self-defense. Indeed , Allen state d that had the case procee ded to trial, he w ould

have liked for Appellant's statement to have been admitted into evid ence . This

is a reaso nable tac tical decisio n, and w e will not sec ond-gu ess it.

       Regarding Appellant's assertion that he was intoxicated when he gave h is

statem ent, we emphasize that "[I]ntoxication or mental unsoundness is not alone

sufficient to bar the introduction of statements made by an accused if the

evidence also shows the accuse d was cap able of unde rstanding his rights."

State v. Bell, 690 S.W .2d 879, 882 (Tenn. Crim . App. 1985 ).

       Appe llant's final co mpla int is that Mr. Allen rendered ineffective assistance

by coercing him into signing the plea agreement. Appellant contends that he did

not sign the plea agreement freely, knowingly, and voluntarily. In Hill v. Lockhart,

474 U.S. 52, 59, 106 S.C t. 366, 369-70, 88 L.Ed.2d 203 (1985), the United States

Supreme Court held that the two-prong analysis of Strickland v. Washington for

evaluating ineffective assistance of counsel claims applies to plea agreements.

In order to satisfy the "prejudice" prong, the accused must demonstrate "that

there is a reasonab le probability that, but for coun sel's errors, he wou ld not have

pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 106

S.Ct. 366, 370.

       Appellant testified at the hearing on his pe tition for post-c onviction relief

that Mr. Allen neglected to explain all of his constitutional rights to him, but he

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could not recall which rights Allen failed to discuss. Upon being questioned by

the court, Appellant stated that he rec alled th e cou rt advisin g him of all of h is

rights befo re he en tered his g uilty plea.

       Attorney Allen testified that he and Appellant discussed the different

degrees of homicide and the various sentencing ranges. Allen averred that there

was no ques tion tha t Appe llant un dersto od all that he and Appellant discussed.

There is adeq uate p roof in th is reco rd that c ouns el did e xplain Appellant's rights.

Moreover, Appellant conceded that the court had advised him of all of h is rights

before he entered his plea . Base d on th is record, it is clear that Appellant's plea

was entere d freely, voluntarily, and know ingly.

       The judgm ent of the trial court dism issing Ap pellant's p etition for po st-

conviction relief is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




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