       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT KNOXVILLE                      FILED
                                                          January 31, 2000
                    DECEMBE R SESSION, 1999
                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk



GREGORY JAMES HARPER, )          C.C.A. NO. E1999-00798-CCA-R3-PC
                      )
    Appellan t,       )
                      )          SULLIVAN COUNTY
VS.                   )
                      )
STATE OF TENNESSEE,   )          HON. R. JERRY BECK,
                      )          JUDGE
    Appellee.         )
                      )          (Post-Conviction)




FOR THE APPELLANT:                    FOR THE APPELLEE:

DAVID W. TIPTON                       PAUL G. SUMMERS
P.O. Box 787                          Attorney General and Reporter
Bristol, TN 37620
                                      R. STEPHEN JOBE
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      GREELEY W ELLS
                                      District Attorney General

                                      JOSE PH E UGE NE P ERR IN
                                      Assistant District Attorney General
                                      Sullivan County Justice Center
                                      Blountville, TN 37617

OPINION FILED ________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION
          This is an appeal as of right from the judgment of the trial court denying

post-conviction relief. On September 15, 1997, the Defendant, Gregory James

Harper, pleaded guilty to two counts of attempted first degree murder and three

counts of selling less than .5 grams of cocaine. In accordance with his plea

agreem ent, the trial cour t sentenc ed him as a Ra nge I stan dard offe nder to

sixteen years incarce ration for each co unt of attempte d murde r and to six years

incarceration for each count of th e sale of c ocaine . The trial court also fin ed him

$2,000 for each count of the sale of cocaine. The trial court ordered that the

sentences be serve d conc urrently.           Th e Defe ndant th erefore received an

effective sentence of sixteen years and fines totaling $6,000.



          On August 3, 1998, the Defendant filed a pro se petition for post-conviction

relief.    The trial co urt subse quently a ppointe d coun sel to aid h im in pos t-

conviction proceedings, and the Defe ndant filed an am ended petition for p ost-

conviction relief, alle ging (1 ) that his trial cou nsel w as ine ffective for adv ising h im

that he would be eligible for release after serving 30% of his sentence; (2) that

his plea was unlawfully induced based on inaccura te advice that the thre e coun ts

of selling cocaine were Class B felonies; and (3) that the State of Tennessee

unlaw fully withheld exculpatory evidence from him, namely the statements of

victims Mike Danser and Larry Miller and a TBI report concerning the results of

firearm and ballistics tests. At the post-conviction hearing conducted on May 13,

1999, the Defendant voluntarily waived the first and s econ d issue s pres ented in

his petition, preserving o nly the third issue for our consideration. In addition, he

stated that he wishe d to pre serve his inef fective assista nce o f coun sel claim only

as to his third claim of error. Simply stated, he contended that the Sta te with held

exculpatory evidenc e from h im, and in the altern ative, he a rgued th at if the State

did in fact d isclose the ev idenc e at issu e to his trial counsel, his trial counsel was

ineffective for failing to share or discuss it with him.

                                             -2-
            The post-conviction court did not delve de eply into the underlying facts of

    this case. However, at the guilty plea proceeding, the State, with the consent of

    the defen se, stip ulated the fac ts on th e reco rd.            The following facts are

    summarized from the stipulation:1 The Defendant and his co-defendant, Mike

    Walling, were members of a group called the Outcasts.                    The Outcasts and

    another group, which included the victims, had engaged in an ongoing dispute

    durin g Nove mbe r 1996 . On N ovem ber 21 , 1996 , mem bers o f the gro up wh ich

    included the victim s planne d to go to the a partme nt of T.J. P helps, a member of

    the Outcasts, to discuss the ongoin g proble ms be tween the grou ps. Phelps lived

    in an apartment building immediately adjacent to a shopping center, and

    mem bers of the victims’ group met in the shopping plaza parking lot before

    procee ding to P helps’ ap artmen t.



            While the victims’ group was gathering in the parking lot, Walling and other

    individua ls arrived in W alling’s car, p arked in fro nt of Phe lps’ apartm ent, and

    emerged from th e car w hile the victims’ group began to approach Phelps’

    apartm ent. Words w ere exchanged, shots were fired, and the victims w ere

    wounded by bullets during the gunfire. A number of gun shots came from the

    vicinity of Walling’s vehicle.



            Witnesses identified the Defendant as one of the shooters.                      Police

    recovered num erous shell casings at the scene, which were sent to the

    Tennessee Burea u of Inves tigation for a nalysis. T hey also recove red a .22

    caliber semi-automatic handgun from the apartment of Tracy Phelps, the sister

    of T.J. Phelps. Tracy Phelps told police that she had seen her brother hide the

    gun in he r apartm ent.



            At the post-conviction hearing, the Defendant testified that his trial counsel


1
    The facts in the record pertaining to the sale of drugs are not pertinent to our disposition
    of the case.

                                                  -3-
never discuss ed with h im the T BI lab rep ort conce rning the results of tes ts

performed on a gun used in the shooting and on shell casings found at the scene.

He stated he was not awar e at the time o f his plea that such a report existed. He

further claimed that he initially learned of the report from his co-defendant, who

was inc arcerate d with him and w ho pos sessed a copy o f the repo rt.



       The Defendant explained how he believed the TBI report would have been

helpful to his case: He testified that the report contained an analysis of a number

of shell casings which were found at the scene, some of which were linked to the

gun recovered from Tracy Phelps’ apartment and later tested by the TBI. The

Defendant testified that the gun tested by the TBI belonged to T.J. Phelps. He

claimed that Phelps had denied firing a gun on the night in question. According

to the Defend ant, Phelps w as to offer testimony against him at trial.             The

Defendant maintained that because the ballistics report showed that Phelps’ gun

had been fired and that shell casings found a t the scene were matched to the

gun, the report would have served to discredit Phelps’ statement that he did not

fire his gun on the night of the shooting.



       The Defen dant also comp lained tha t he was not furnish ed with s tateme nts

of the victims, Larry Ray Miller, Jr. and John Michael Danser, prior to his plea

hearing.   He explained that in their statements to police, both victims had

reported that they chose to go to the location where the shooting occurred,

knowing that the Outcasts would be there. The D efend ant ins isted th at this

showed “spontaneity” and would have indica ted the lack of p reme ditation on his

part. In add ition, the Defe ndan t repor ted tha t in their statem ents to po lice, both

victims denied being able to identify who shot them. Finally, he stated that he

believed the State intended to show at trial that he fired his gun directly at the

victims or that he shot in their direction, knowing that they would likely be hit by

the bullets.   He pointed out that in Danser’s statement to police, Danser

reported, “I treated m y woun d by pu tting alcoh ol and pr oxide [sic] o n it [and] I

                                          -4-
never went to a hospital or doctor.” The Defendant contended that this showed

the injuries to the vict ims w ere m inima l, and therefore, one could assume that the

injuries were caused by ricochet rather than by direct fire.



       On cross-examination, the Defendant admitted that he was present at the

preliminary hearing, where Danser testified that he could not identify who shot

him and M iller. With regard to Miller, the Defendant admitted that no one knew

what Miller’s testimony at trial might be. He also stated that he did not deny

having or shooting a gun on the night in question. He stated that he fired his gun

a number of times and a dmitte d he w as aw are tha t individ uals at the scene saw

him fire the weapon. He also admitted he was aware that T. J. Phelps was

known to fire his gun at his home and agreed that one m ight expe ct to find sh ell

casings at the scene from previous occasions when Phelps fired shots.



       Terry Frye, the Defen dant’s trial co unsel, als o testified at th e post-

conviction hearing. Contrary to the Defendant’s testimony, he testified that he

shared with the Defe ndan t all of the discovery materials which he received from

the State and stated he did not believe that any exculpatory evidence had been

withheld from the defense. He maintained that prior to the plea hearing, h e

discuss ed with th e Defe ndant th e anticipa ted testim ony of all trial w itnesses .



       Frye testified that although he did not receive copies of the written

statem ents of Miller and Danser during the discove ry proce ss, the S tate advised

him that he would receive actual copies of the statements at trial after Miller and

Danser testified. However, he stated that he received other materials during

discovery which he discussed with the Defendant, including a copy of the

preliminary hearing at which Danser testified. He stated that he discuss ed with

the Defendant the fac t that D anse r could not identify the shooters, which he had

ascertained from D anse r’s testimony at the preliminary hearing, and the fact that

Danser and other members of his group had gone to the scene of the shooting.

                                          -5-
      In additio n, Frye testified that he believed he had seen a copy of Miller’s

statement to police and that he was aware of Miller’s probable testimony. He

stated he believed that he had once had a copy of the sta teme nt in his case file,

but he did not possess it at the time of the hearing. He explained that he learned

about Miller’s testimony from co-defendant Walling’s trial counsel, who had

discussed with Miller his possible trial testimon y. Frye stated tha t he was un sure

whether Walling’s counsel had received an actual co py of M iller’s statem ent to

police. However, Frye testified that he discussed with the Defendant that Miller

could not identify the shooters and that there w ere two witness es to the shooting

who would testify that they saw the Defendant firing a gun in th e direction of

Danser and Miller. He further testified that he discovered in his investigation of

the case that the Outcasts had been stockpiling weapons in T.J. Phelps’

apartment and that there had been an ongoing conflict between the Outcasts and

the grou p of whic h Miller an d Dan ser we re mem bers.



       With regard to the TBI ballistics report, Frye testified that he received a

copy of the report from the State prior to the plea hearing. He stated that he

shared the report with his client.        He also testified that he believed the

Defendant’s handwriting was on the copy of the report which he kept in his file.

He stated, “I know that Mr. Harper made notes on various documents. I cannot

spec ifically say this is his writing, but I cannot imagine it would be anyon e else’s.”



       A petitioner in an post-conviction proceeding bears the burden of proving

allegations of fact by clear and co nvincing evidenc e. Tenn. Code Ann. § 40-30-

210(f). Furthermore, “findings of fact [made b y] the trial judge are conclusive on

appeal unless the ev idence prep onderates a gainst the judgm ent.” Cooper v.

State, 849 S.W.2d 744, 746 (Tenn . 1993); Butler v. S tate, 789 S.W.2d 898, 899

(Tenn. 1990 ). Que stions concerning the credibility of the witnesses and the

weight and value to be afforded their testimony are factual issues to be resolved

                                          -6-
by the trial cour t. Bates v . State, 973 S.W .2d 615, 631 (Tenn. Crim . App. 1997 ).



         In Brady v. Maryland, the U nited S tates S uprem e Cou rt estab lished the

prose cution ’s duty to furnish the ac cuse d with e xculp atory e viden ce tha t is

material either to the accused’s guilt or innocence or to the potential punishment

which may be imposed. 373 U.S. 83 (1963). In order to establish a due process

violation under Brady v. Maryland, a defen dant m ust dem onstrate the following:

         1. The Defendant must have requested the information (unless the
         evidence is obviously exculpatory, in which case the State is bound
         to release the inform ation, whethe r requested o r not);
         2. The State must have suppressed the information;
         3. The information must have been favorable to the accused; and
         4. The inform ation m ust ha ve be en m aterial.

State v. Edg in, 902 S.W.2d 387, 389 (Te nn. 1995). Th e exculpatory evide nce is

“mate rial” if there is a “‘reas onab le prob ability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been differen t.’”

Id. at 390 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). However, the

State is not required to disclose information that the accused already possesses

or is able to o btain. State v. Ma rshall, 845 S.W.2d 228, 233 (Tenn. Crim. App.

1992).



         To determine w hether counsel provid ed effective assista nce at trial, a court

must decide whether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1 975). To succee d on a cla im that his couns el was in effective a t trial, a

petitioner bears the burden of showing that his counsel made errors so serious

that he wa s not func tioning as couns el as gua ranteed under the Sixth

Amendment and that the de ficient representation p rejudiced the pe titioner,

resultin g in a fa ilure to p roduc e a relia ble result. Strickland v. Washington, 466

U.S. 668, 68 7 (1984 ); Cooper, 849 S.W .2d at 747 (Tenn. 1 993); Butler, 789

S.W.2d at 899.        To satisfy the second prong, the petitioner must show a

reaso nable proba bility tha t, but for c ouns el’s un reaso nable error, the fact finder


                                           -7-
would h ave ha d reaso nable d oubt reg arding p etitioner’s gu ilt. Strickland, 466




                                         -8-
U.S. at 695.    This reasonable probability must be “sufficient to undermine

confidence in the outcom e.” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).



      This two part standard of measuring ineffective assistance of counsel also

applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52

(1985). The prejudice requirement is modified so that the petitioner “must show

that there is a reasonable probability that, but for counsel’s errors he would not

have plead ed guilty and w ould have ins isted on going to trial.” Id. at 59.



      When reviewing trial counsel’s actions, this Court should not use the

bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics.

Hellard v. State, 629 S.W .2d 4, 9 (Tenn . 1982). Coun sel’s alle ged e rrors sh ould

be judged at the time they were made in light of all facts and circumstances.

Strickland, 466 U.S . at 690; see also Cooper 849 S.W.2d at 746.



      If afforded a post-conviction eviden tiary hearin g by the tria l court, a

petitioner must do more than merely present evidence tending to show

incompetent representation and prejudice; he must prove his factual allegations

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

previo usly noted, when an evidentiary hearing is held, findings of fact made by

that court are conclusive and binding on this Court unless the evidence

preponderates against th em. Cooper, 849 S.W.2d at 746 (citing Butler, 789

S.W.2d a t 899).



      At the conclusion of the post-conviction hearing, the trial judge made the

following findings of fact: He first concluded that “the [TBI] lab report clearly was

turned over to defense counsel.” He further found that Frye discussed the report

with the Defendant. In addition, he stated, “I’d really see where it would have

been little use bec ause [the Defen dant] . . . admits in his testimony he was a

shoote r.” The court next accredited Frye’s testimony that he discussed with the

                                         -9-
Defendant Danser’s testimony at the preliminary hearing. The judge concluded

that Danse r’s statem ent to police would not have “offered any surprise because

[the defense] actually had equivalent testimony available, to-wit, from the

Preliminary Hearing.” Finally, the trial judge stated that Frye was “not surprised

by the Miller stateme nt.” Thus, the trial court found that there was no withholding

of evidence by the State and that Frye provided the Defendant effective

representation, discussing with him all evidence obtained during discovery and

the anticip ated testim ony of all trial w itnesses .



       In additio n, we note th at the fa ctual stipulation entered into the record

before entry of the Defen dant’s pleas contained some information of which the

Defendant claimed no kno wledge . The stipulation revealed that the victims went

to the scen e of the sh ooting of th eir own a ccord. It also re veale d that the gun

which was recovered from Tracy Phelps’ home had been identified as the source

of some of the shell casings found at the scene. The report also indicated that

two guns which were never recovered were the sources of other shell casings at

the scene.



       Having thoroughly reviewed the record, we conclude that the evidence

does not preponderate against the trial judge’s findings. We conclude that each

item of evidence that the Defendant contends he did not receive before the plea

hearing was either turned over to the defense and discussed with the Defendant

or was information already possessed or easily o btained by the D efenda nt. The

conflicting testimon y of the Defendant and his defen se cou nsel at the post-

conviction hearing presen ted a qu estion of fa ct for resolu tion by the trial court.

The trial court heard all testimony in this case and specifically accredited that of

Mr. Frye. W e will not disturb this finding o n appe al. We therefo re find n o me rit

in the De fendan t’s claims.



       Accordingly, the judgment of the trial court is affirmed.

                                           -10-
                              ______________________________
                              DAVID H. WELLES, JUDGE



CONCUR:



________________________________
JOSEPH M. TIPTON, JUDGE



________________________________
JERRY L. SMITH, JUDGE




                             -11-
