         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 18, 2003

         ALONZO LEONARDO GAYDEN v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Rutherford County
                       No. F-52463     James K. Clayton, Jr., Judge



                   No. M2003-00165-CCA-R3-PC - Filed January 22, 2004


The petitioner, Alonzo Leonardo Gayden, appeals from the Rutherford County Circuit Court’s
denying him post-conviction relief from his 2001 conviction for theft of property valued at $1,000
or more, a Class D felony. He contends that he received the ineffective assistance of counsel. We
affirm the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Larry D. Brandon, Murfreesboro, Tennessee, for the appellant, Alonzo Leonardo Gayden.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The petitioner was charged with aggravated burglary, forgery, and theft of property valued
over $1,000. The proof at his jury trial reflects that in mid-February 2000, the apartment of Timothy
and Jennifer Hurst was burglarized. The items taken included a twenty-five-inch RCA color
television, a thirteen-inch Sanyo color television, a Sanyo video cassette recorder (VCR), a Memorex
VCR, a set of Wilson golf clubs, a Uniden cordless telephone, a Dirt Devil vacuum cleaner, a
Gibson guitar with a stand, a microwave oven with a stand, a Black & Decker cordless drill, an opal
ring with diamonds, hunting knives, and two boxes of bank account checks. At the time of the
burglary, the petitioner lived across the breezeway from the Hursts in the same apartment complex.

        Only the guitar and the Memorex VCR were recovered. Mr. Hurst identified the guitar as
his, noting the distinctive pick that was stuck in the strings. He also identified the VCR as his, but
he admitted that he could not be absolutely sure that it belonged to him. He valued all the stolen
items at approximately $3,000. Similarly, Jennifer Hurst identified the VCR as hers, but she, too,
could not be absolutely certain.

        Richard Jackson, an owner of a loan company, testified that on February 15, 2000, a person
identified as the petitioner pawned a Memorex VCR and a guitar for $100. He said Mr. Hurst later
identified these items at his store. Jim Davies, an owner of a gun and pawn shop, testified that on
February 15, 2000, he bought a twenty-five-inch RCA television from the petitioner. Scott Saunders,
the owner of Roadrunners, a type of pawn shop, testified that he bought a cordless drill and a Sanyo
VCR from the petitioner on February 16. James Michael Mullins, an employee at the Red Rose
Café, testified that the petitioner was at the shop late one night in February 2000 and presented a
check to a co-worker who was not present for the trial. He identified a check dated February 15,
2000, on the Hursts’ bank account, but he could not be certain that the petitioner had presented it.

       The jury acquitted the petitioner of the aggravated burglary and the forgery charges but
convicted him of theft of property valued at $1,000 or more. The record reflects that the parties
agreed to a Range I, standard sentence for two years with the petitioner waiving any probation
application. No appeal ensued.

        At the post-conviction evidentiary hearing, the petitioner and his trial attorney testified.1 The
petitioner complained that his trial attorney never replied to his correspondence. He said the only
times he saw his attorney was on the various court dates. He said he told his attorney that he was
not guilty and wanted to take an active part in his defense. He claimed, however, that the total time
that he spent with his attorney was less than thirty minutes.

        The petitioner testified that witnesses from the Red Rose Café gave inconsistent descriptions.
He said he told his attorney that the witnesses should be called on his behalf but the attorney “just
kind of shrugged.” The petitioner admitted, though, that his attorney did a good cross-examination
of James Michael Mullins and had “discredited Mr. Mullins pretty good.” He said his wife should
have testified. He said his attorney told him that his wife would be called but she was not. The
petitioner claimed that a witness existed who could prove that he obtained one of the electronic
pieces legally.

        The petitioner then made various unrelated complaints. He complained that his acquittal of
aggravated burglary meant that he should not have been convicted of theft. He asserted that the only
items that were identified were not worth more than $500. He also believed that the videotape of
the police interrogating him and his wife should have been played to the jury. He acknowledged that
he decided not to testify in order to prevent the state’s use of his past record, but he said the attorney
did not explain to him the significance of unexplained possession of recently stolen property. The


         1
          The petitioner’s brief does not contain any evidence presented at the hearing. It is the duty of the petitioner,
as the appellant, to includ e in his brief a statement of the facts relevant to the issues on appeal with appropriate record
references. T.R.A.P. 27(a)(6). Failure to do so works an unnecessary hardship on the appellee and an inconvenience
to the court.

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petitioner noted that the docket outside the courtroom listed four drug-related misdemeanor charges
against him, and he felt positive that jurors had seen them. He also claimed that the trial court’s
instructions placed too much emphasis on the theft charge and led to his conviction. Finally, the
petitioner said that he told his attorney that he wanted to appeal and that he did not recall waiving
his right to seek a new trial and right to appeal.

        On cross-examination, the petitioner acknowledged that neither his wife, the Red Rose
witnesses, nor any of the jurors were present to support his claims. He acknowledged that the state
offered to resolve all of his cases with an effective two-year sentence, but he asserted that he did not
know he was waiving any appeal.

        The petitioner’s trial attorney testified that he had been an assistant public defender in
Rutherford County for thirteen years. He said he began representing the petitioner when he appeared
for arraignment on the charges in Circuit Court. He noted that he did not keep time sheets, and the
record reflects that his memory was less than clear regarding certain of the petitioner’s claims. He
could not dispute the petitioner’s claims that he never visited the petitioner in jail and never
responded to the petitioner’s letters. He said most of the meetings with the petitioner were at the
courthouse. He did not recall discussing strategy with the petitioner, although he noted that they
went over the discovery materials.

        Regarding the other Red Rose Café witnesses, the attorney testified that the state could not
locate the person who actually cashed the check for the Café. He said that he was concerned that the
other witnesses would be able to identify the petitioner if they were called to testify. He said that
his strategy was successful because the jury acquitted the petitioner of the forgery charge. He
acknowledged that he and the petitioner discussed calling the petitioner’s wife as a witness, but he
said that he did not believe she would be a good witness. He said Mrs. Gayden had a history of drug
abuse and rehabilitation attempts and gave a statement to the police claiming that she did not know
anything about the burglary.

        Unfortunately, the trial court failed to make specific findings regarding the proof received
at the evidentiary hearing. However, it found that sufficient evidence existed to convict the
petitioner of theft and that the petitioner was not prejudiced by his attorney’s failure to call witnesses
from the Red Rose Café. The trial court dismissed the petitioner’s petition, concluding that there
was no basis for relief.

         Essentially, the petitioner complains about his trial attorney’s failure to communicate with
him, failure to include him in the defense strategy, and failure to present witnesses at trial. He
asserts that the attorney’s lack of communication and preparation prejudiced him. The state responds
that the attorney met with the petitioner on many occasions at the courthouse, discussed the case with
the petitioner, and provided him discovery materials. It asserts that the attorney made tactical
decisions regarding not calling the witnesses requested by the defendant. It contends that the
petitioner failed to establish that the attorney’s representation was below the range of competence



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demanded of attorneys in criminal cases and failed to establish any prejudice. We agree with the
state.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d
1197, 1202-04 (D.C. Dir. 1973). Also, in reviewing counsel’s conduct, a “fair assessment of
attorney performance requires that every effort 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, 104 S. Ct. at 2065; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic
failed or even hurt the defense does not, alone, support a claim of ineffective assistance. Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201. On appeal, we are bound
by the trial court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to
mixed questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.

        A telling fact supporting the effectiveness of the petitioner’s attorney is the petitioner’s
acquittal on the aggravated burglary and forgery charges. Given the state’s lack of the witness who
accepted the check at the Red Rose Café, it was a reasonable tactic for the attorney not to call
witnesses who might connect the petitioner to the transaction. In any event, the petitioner was
acquitted on the forgery charge.

        As for the petitioner’s wife, nothing in the record indicates that the reasons for the attorney’s
refusing to use her as a witness were insufficient. In this respect, absent her testifying at the post-
conviction hearing, there is no way to assess the claimed importance of her testimony. See Black
v. State, 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). Obviously, the same applies relative
to the other witnesses that the petitioner wanted to call at his trial.




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        Generally, the petitioner has failed to show that his attorney’s actions or inactions fell below
what is demanded of attorneys in criminal cases or to show that he was prejudiced in his case. We
conclude that the record justifies the trial court’s refusal to grant the petitioner relief. In
consideration of the foregoing and the record as a whole, we affirm the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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