            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                            NOVEMBER 1997 SESSION               FILED
RICHARD NELSON,                   *      C.C.A. # 02C01-9612-CR-00472

      Appellant,                  *      SHELBY COUNTY
                                                               November 25, 1997
VS.                               *      Hon. Chris Craft, Judge

STATE OF TENNESSEE,               *      (Post-Conviction)
                                                                Cecil Crowson, Jr.
      Appellee.                   *
                                                                Appellate C ourt Clerk




For Appellant:                           For Appellee:

Gerald Stanley Green, Attorney           John Knox Walkup
147 Jefferson, Suite 1115                Attorney General and Reporter
Memphis, TN 38103
(on appeal)                              Deborah A. Tullis
                                         Assistant Attorney General
William B. Seligstein, Attorney          425 Fifth Avenue North
100 North Main Building                  Second Floor, Cordell Hull Building
Memphis, TN 38103                        Nashville, TN 37243

                                         Daniel R. Woody and
                                         James C. Beasley, Jr.
                                         Assistant District Attorneys General
                                         201 Poplar Avenue, Third Floor
                                         Memphis, TN 38103




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Richard Nelson, appeals the trial court's denial of his

petition for post-conviction relief. The single issue presented for review is whether

the petitioner was afforded the effective assistance of counsel at his trial.



              The petitioner was convicted of attempt to commit the first degree

murder of Tamara Rogers, based on a shooting incident which occurred September

3, 1991. The trial court imposed a Range I sentence of 18 years. This court

affirmed on direct appeal. State v. Richard Nelson, No. 02C01-9211-CR-00251

(Tenn. Crim. App., at Jackson, Oct. 13, 1993). There was no application for

permission to appeal to the supreme court.



              On December 14, 1994, the petitioner filed this application for post-

conviction relief alleging, among other things, that his trial counsel was ineffective

for failing to adequately cross-examine the victim, by failing to secure the presence

of important defense witnesses, and by neglecting to place into evidence medical

records which would have substantiated a prior head injury. The trial court made

extensive findings of fact in denying relief and addressed each allegation of

deficiency in performance on the part of trial counsel:

              [There was] nothing improper or seriously lacking with his
              attorney's cross-examination of the victim at trial and ...
              [the] petitioner has not shown in the proof how any
              different cross-examination in this trial would have
              affected the verdict.... The next allegation ... deals with
              his attorney's failure to subpoena ... Ann Arnold, Shirley
              Thompson, and Vera Weeks, which were all supposed to
              be alibi witnesses.... This court continued the hearing ...
              to allow petitioner to ... call [them] to testify.... [None] of
              them were ever produced by the petitioner to support his
              claims. Instead, the petitioner's ... brother, John Nelson,
              was called ... and testified that he was with petitioner the
              night of the offense with James Nelson [and] Vera
              Weeks ... (in contradiction to James Nelson's [trial]
              testimony that John was not present).... He also stated
              that Vera Weeks ... did not get home until 10:30 P.M. the

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               night of the offense.... There is nothing in the proof to
               show how the testimony of [the three women] would have
               helped petitioner at trial.... John Nelson placed Vera
               Weeks at work at 9:00 P.M., the time of the offense....
               [T]he medical records ... were produced at the hearing ...
               [and] would have hurt the petitioner's ... defense. They
               show the petitioner was only hospitalized for two days,
               from July 13 ... until July 15, 1991.... C.T. scans ... were
               normal.... These records indicate that his family
               considered him back to normal on July 15, more than six
               weeks prior to the shooting, and that his injuries, if any,
               were not serious....



               In order for the petitioner to be granted relief on the basis of ineffective

assistance of counsel, he must first establish that the services rendered or the

advice given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). There must be a reasonable

probability that but for counsel's errors, the results of the proceeding would have

been different. Strickland, 466 U.S. at 694; Best v. State, 708 S.W.2d 421, 422

(Tenn. Crim. App. 1985). Should the petitioner fail to establish either factor, he is

not entitled to relief.



               When determining whether counsel's performance was deficient,

"every effort [must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. "Thus,

the fact that a particular strategy or tactic failed or even hurt the defense does not,

alone, support a claim of ineffective assistance." Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). We must defer to trial strategy and tactical choices

when they are informed ones based upon adequate preparation. Id.



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              Moreover, in Black v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1990),

this court enumerated the standard for establishing prejudice by counsel's failure to

subpoena witnesses. To establish prejudice, the petitioner must: "(1) produce the

witness at his post-conviction hearing; (2) show that through reasonable

investigation, trial counsel could have located the witness; and (3) elicit both

favorable and material testimony from the witness." Denton v. State, 945 S.W.2d

793, 802-03 (Tenn. Crim. App. 1996) (citing Black, 794 S.W.2d at 757). This

standard requires petitioners to produce the uncalled witness at the post-conviction

proceeding so that courts need not speculate as to the materiality of the testimony

or credibility of the missing witness. Black, 794 S.W.2d at 758.



              On appeal, the findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim.

App. 1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The

burden is on the petitioner to show that the evidence preponderates against those

findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



              After carefully scrutinizing this record, it is our view that the evidence

supports the conclusions of the trial court. The cross-examination of the victim was

within professional guidelines. The petitioner failed to demonstrate how the

witnesses not called at trial would have aided his defense. The medical records

would have tended to undermine the petitioner's claims about the seriousness of his

head injury. Thus we find nether deficiency in performance nor prejudice in result.



              Accordingly, the judgment is affirmed.




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                                ________________________________
                                Gary R. Wade, Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Joe G. Riley, Judge




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