           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE           FILED
                               MARCH 1997 SESSION
                                                            July 11, 1997

                                                         Cecil W. Crowson
DOUGLAS WAYNE TRAMMELL,                )               Appellate Court Clerk
                                            C.C.A. No. 01C01-9602-CC-00083
                                       )
             Appellant,                )    Montgomery County
                                       )
VS.                                    )    Honorable James E. Walton, Judge
                                       )
STATE OF TENNESSEE,                    )    (Post Conviction - Coram Nobis)
                                       )
             Appellee.                 )



For the Appellant:                          For the Appellee:

Alan R. Beard                               Charles W. Burson
737 Market Street, Suite 601                Attorney General and Reporter
Chattanooga, TN 37402                              and
                                            Karen M. Yacuzzo
                                            Assistant Attorney General
                                            450 James Robertson Parkway
                                            Nashville, TN 37243-0493

                                            James Wesley Carney, Jr.
                                            District Attorney General
                                                    and
                                            Arthur Bieber
                                            Assistant District Attorney General
                                            204 Franklin Street, Suite 200
                                            Clarksville, TN 37040




OPINION FILED:



AFFIRMED

Joseph M. Tipton,
Judge
                                       OPINION


              This is an appeal from the dismissal of the petitioner’s petition seeking

post-conviction relief and a writ of error coram nobis. The sole issue with regard to the

post-conviction relief petition is whether the petitioner was deprived of effective

assistance of counsel when he was convicted of felony murder. The sole issue with

regard to the writ of error coram nobis is whether newly discovered evidence entitled

the petitioner to a new trial. The trial court denied relief on all grounds. We affirm.



                                           FACTS

              A brief recitation of the evidence introduced at the original trial is

appropriate. On the date of the homicide, the petitioner and the codefendant, Chris

Moore, consumed a considerable amount of liquor and went to a Clarksville “strip bar,”

The Pink Lady. Rory Capps was a patron at the bar and cashed a $1,500.00 check.

Subsequently, Capps left with the petitioner and Moore, presumably to be carried

home. The testimony conflicted from this point. Moore contended that the petitioner

robbed and killed Capps. The petitioner claimed that he was asleep, and when he

awoke, Capps was no longer in the vehicle.



              On the same evening, the petitioner and Moore drove to the home of

Cindy Dickson, a dancer at The Pink Lady. Dickson testified that the petitioner advised

her that he had killed Capps and showed her the money he had taken. The petitioner

forced himself upon Dickson, but was unable to have sex. Both Dickson and Moore

testified that the petitioner threatened to kill them if they told anyone about the

homicide.



              The body of Capps was subsequently found by the side of a country road.

He had multiple gunshot wounds to the back of the head and neck.




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              Based upon this evidence, the petitioner was convicted of felony murder

and received a sentence of life imprisonment. Moore was found guilty of second

degree murder. The petitioner’s judgment of conviction was affirmed on appeal. State

v. Douglas Wayne Trammell, No. 01C01-9210-CC-00330, Montgomery County (Tenn.

Crim. App. 1993), app. denied (Tenn. Nov. 29, 1993).



                                  ISSUES FOR REVIEW

              The petitioner contends that his trial counsel was ineffective in the

following respects:

              (1) counsel did not undertake an appropriate pretrial
              investigation;

              (2) counsel failed to call a witness to establish an alibi
              defense;

              (3) counsel failed to secure the testimony of Ann Stover who
              could prove the petitioner’s innocence;

              (4) counsel failed to establish that the victim did not die in the
              manner described by state witnesses;

              (5) counsel failed to call witnesses to establish the absence of
              gunfire at the alleged site of the homicide;

              (6) counsel failed to have the petitioner’s clothing tested for
              blood or gunpowder residue and failed to have Moore’s car
              tested for fingerprints and other scientific evidence;

              (7) counsel failed to present testimony of Moore’s ex-wife as to
              Moore’s violent behavior;

              (8) counsel failed to call witnesses to show the petitioner’s
              good character; and

              (9) counsel did not adequately prepare the petitioner for his
              trial testimony.

As to the petition for writ of error coram nobis, the petitioner contends that the trial court

erred in not granting a new trial based upon the testimony of two inmates that Moore

had confessed to committing the murder.




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                                   SCOPE OF REVIEW

              We first note that the trial court made extensive findings concerning these

issues, concluding that the allegations of ineffective assistance of counsel were without

merit. The trial court found that virtually all of the allegations of ineffectiveness related

to strategic decisions made during the course of trial. Also, it found that counsel not

only met but exceeded the standards expected of defense counsel.



              The trial court's findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995);

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

899-900 (Tenn. 1990). This court may not reweigh or reevaluate the evidence, nor

substitute its inferences for those drawn by the trial court. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses

and the weight and value to be given to their testimony are resolved by the trial court,

not this court. Id.



              This court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) and Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). A petitioner has the burden of

proving that (1) the attorney’s performance was deficient, and (2) the deficient

performance resulted in prejudice to the defendant so as to deprive him of a fair trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369

(Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler 789 S.W.2d at

899.



              The test in Tennessee for determining whether counsel provided effective

assistance is whether counsel’s performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. A



                                              4
petitioner must overcome the presumption that counsel’s conduct falls within the wide

range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065; State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). In order to

prove a deficiency, a petitioner must show that counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Goad, 938 S.W.2d

at 369.



              In reviewing counsel's conduct, a "fair assessment . . . 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. The

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

alone, establish unreasonable representation. However, deference to matters of

strategy and tactical choices applies only if the choices are informed ones based upon

adequate preparation. Goad, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982); Cooper, 847 S.W.2d at 528 (Tenn. Crim. App. 1992).



              When a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of a defense, these witnesses should be presented by

the petitioner at the evidentiary hearing. Black, 794 S.W.2d at 757. As a general rule,

this is the only way the petitioner can establish that (a) a material witness existed and

the witness could have been discovered but for counsel’s neglect in the investigation of

the case, (b) a known witness was not interviewed, (c) the failure to discover or

interview a witness inured to petitioner’s prejudice, or (d) the failure to have a known

witness present or call the witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the petitioner. Id. Neither the trial court nor this court




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can speculate on what the testimony of a witness might have been if introduced by

counsel. Id.



                               I. PRETRIAL INVESTIGATION

                 The petitioner contends his trial counsel conducted an inadequate pretrial

investigation. Contrary to these assertions, the trial court found that counsel spent an

inordinate amount of time at the scene of the crime searching for evidence. In addition,

the trial court found that counsel talked to numerous witnesses. In essence, the trial

court found that the pretrial investigation was appropriate. The evidence does not

preponderate against this finding. This issue is without merit.



                                    II. ALIBI TESTIMONY

                 The petitioner contends that counsel should have called the petitioner’s

father to testify that the petitioner was at home at approximately 1:30 a.m. when the

murder was alleged to have occurred. This proposed testimony would not have been

consistent with the petitioner’s testimony. The petitioner admitted being in the car and

claimed that he fell asleep. The petitioner testified that when he awoke, Capps was

gone. The failure to use the father’s testimony was strategic and did not prejudice the

petitioner. This issue is without merit.



                             III. TESTIMONY OF ANN STOVER

                 The petitioner contends that counsel should have called Ann Stover a/k/a

Katrina as a witness, and she would have testified that the petitioner was innocent.

Unfortunately, this potential witness disappeared prior to the original trial. Counsel

made an attempt to find her but was unable to do so. Furthermore, the petitioner did

not produce her testimony at the post-conviction hearing. We are unable to speculate

as to what her testimony would be. See Black, 794 S.W.2d at 757. This issue is

without merit.



                                               6
                                IV. MANNER OF DEATH

              The petitioner contends that counsel should have established that the

murder had not taken place at the location or in the manner suggested by Moore. He

specifically contends counsel should have consulted a ballistics expert. Since no

ballistics expert testified at the post-conviction hearing, the petitioner has not shown

prejudice. This issue is without merit.



                               V. ABSENCE OF GUNFIRE

              The petitioner contends that counsel was woefully deficient in failing to

call witnesses who would establish they heard no gunshots near the place where the

body was found. Trial counsel was aware that there were no such witnesses as was

the state. According to counsel, this was never a disputed issue. Counsel saw no need

to put on such proof. This was a tactical decision. Furthermore, there is no showing

that the result of the proceedings would have been any different had this testimony

been introduced. This issue is without merit.



                       VI. ANALYSIS OF PHYSICAL EVIDENCE

              The petitioner contends that counsel was deficient in failing to have the

petitioner’s clothes analyzed for blood and gunpowder residue. He further contends

that counsel was deficient in not having Moore’s car tested for fingerprints and other

scientific evidence. There was no testimony at the post-conviction hearing as to what a

scientific analysis on the clothes or automobile would have revealed. Accordingly, the

petitioner has failed to show prejudice. As to the automobile, we note that the petitioner

admitted to being in the car on the night of the murder; therefore, the relevance of a

scientific analysis of the car has not been shown. This issue is without merit.



                VII. CODEFENDANT’S REPUTATION FOR VIOLENCE




                                             7
                 The petitioner contends that counsel was ineffective by failing to procure

the testimony of Moore’s ex-wife to show Moore’s violent nature. First, we note that it is

questionable whether such evidence would have been admissible. See Tenn. R. Evid.

404. Second, it was trial counsel’s understanding that at the time of trial Moore’s ex-

wife was unlikely to say anything bad against Moore. Accordingly, counsel felt her

testimony might be detrimental. The decision not to call her as a witness was an

appropriate tactical choice. This issue is without merit.



                                 VIII. CHARACTER PROOF

                 The petitioner places great emphasis upon trial counsel’s failure to put on

proof as to the petitioner’s good character. Counsel made a deliberate decision not to

call character witnesses. This decision was based upon his fear of “opening the door”

so as to allow the state to introduce evidence of the petitioner’s prior violent acts.

Although the petitioner had earlier been acquitted of an aggravated assault upon

several persons relating to a “drug deal,” counsel still feared that it was risky to put on

character proof. This tactical decision is not subject to post-conviction challenge.



                               IX. PETITIONER’S TESTIMONY

                 The petitioner contends that trial counsel did not adequately prepare him

for his trial testimony. This allegation is not supported by the evidence. Counsel did go

over the petitioner’s testimony with him prior to trial. At that time the petitioner seemed

very credible. However, the petitioner conceded that, at trial, he “stupidly ran [his]

mouth about things that were impertinent [sic] to the trial.” He further conceded his

testimony was “radical and crazy” and that he did not follow his lawyer’s advice. The

petitioner improperly blames counsel for his own demeanor and conduct. This issue is

without merit.



                              WRIT OF ERROR CORAM NOBIS



                                               8
              The petitioner contends that the trial court erred by denying his writ of

error coram nobis based upon newly discovered evidence. The evidence in support of

the writ consisted of the testimony of two inmates who had been incarcerated with

Moore. One inmate testified that he heard Moore tell another inmate, to the effect that

he had killed a person before and would not mind killing the inmate. The witness

indicated that Moore never gave the alleged victim’s name. The other inmate testified

that Moore admitted to killing someone. The name “Doug” (petitioner) was mentioned.

According to this inmate, Moore said that he and a friend were out drinking, and his

friend was passed out when Moore shot the victim. Moore testified on behalf of the

state and denied making any such statements to these witnesses.



              A writ of error coram nobis lies “for subsequently or newly discovered

evidence relating to matters which were litigated at the trial if the judge determines that

such evidence may have resulted in a different judgment, had it been presented at the

trial.” T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).

The decision to grant or deny such a writ rests within the sound discretion of the trial

court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), 493 U.S. 874,

110 S. Ct. 210 (1989). In exercising its discretion, the trial court must determine the

credibility of the witnesses who testify in support of the petition for writ of error coram

nobis. Hart, 911 S.W.2d at 375.



              Upon considering the testimony of these witnesses, the trial court noted

the questionable character of the statements, the circumstances under which they were

made, and Moore’s denial in making such statements. In its written order, the trial court

found that “the testimony, if assumed to be true, would not affect the outcome . . . and

the fact this is a felony murder conviction.” The trial court did not abuse its discretion in

so ruling. Accordingly, the petition for writ of error coram nobis was properly denied.




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               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                       Joseph M. Tipton, Judge

CONCUR:




Joe G. Riley, Judge




Thomas T. Woodall, Judge




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