           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                        JANUARY SESSION, 1997
                                                     September 18, 1997

                                                   Cecil W. Crowson
PAUL GALBREATH,             )    C.C.A. NO. 01C01-9603-CC-00097
                                                 Appellate Court Clerk
                            )
      Appellant,            )
                            )
                            )    DICKSON COUNTY
VS.                         )
                            )    HON. LEONARD W. MARTIN
STATE OF TENNESSEE,         )    JUDGE
                            )
      Appellee.             )    (Post-Conviction Relief)



FOR THE APPELLANT:               FOR THE APPELLEE:

CHARLES GALBREATH                JOHN KNOX WALKUP
901 Stahlman Building            Attorney General and Reporter
Nashville, TN 37201
                                 EUGENE J. HONEA
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243

                                 DAN ALSOBROOKS
                                 District Attorney General

                                 ROBERT WILSON
                                 Assistant District Attorney
                                 P. O. Box 580
                                 Charlotte, TN 37036




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       Appellant Paul Galbreath appeals the dismissal of his petition for post-

conviction relief. On April 28, 1993, Appellant was indicted for second-degree

murder. On December 21, 1993, a jury found Appellant guilty of voluntary

manslaughter. The trial court imposed a sentence of six years imprisonment. This

Court affirmed Appellant’s conviction and modified his sentence to five years on

September 1, 1995. See, State v. Galbreath, No. 01C01-9406-CC-00204, 1995 WL

518878, at *1 (Tenn. Crim. App. Sept. 1, 1995). In his petition for post-conviction

relief, Appellant alleges that he received ineffective assistance of counsel. After an

evidentiary hearing, the post-conviction court dismissed the petition. After a careful

review of the record, we affirm the judgment of the trial court.



       At the evidentiary hearing on Appellant’s petition for post-conviction relief,

Appellant’s trial counsel testified that before trial he discussed the possibility of

pleading guilty to voluntary manslaughter with Appellant but that Appellant refused

to do so. On the first day of trial, counsel again informed Appellant that he should

plead guilty to voluntary manslaughter. Again, Appellant refused. At the close of

the State’s proof, the district attorney prosecuting the case, District Attorney

Alsobrooks, approached trial counsel asking if Appellant would reconsider the

State’s offer. Trial counsel testified that at this point Appellant agreed to plead

guilty. However, the trial judge refused to accept Appellant’s plea of guilty. Trial

counsel and District Attorney Alsobrooks then discussed the possibility of

recommending to the jury that the proof showed that Appellant was guilty of

voluntary manslaughter. Trial counsel closed his case and made the following

statement during closing: “[B]ased upon the evidence that’s been presented to you

this week, I don’t think there’s any doubt exactly what happened in this case.



                                            -2-
Voluntary manslaughter is the proper verdict for you to return.” District Attorney

Alsobrooks closed by stating, “I have entered into discussion with the defense

lawyer in this case, Mr. Carey Thompson, a very seasoned trial attorney, and at this

point, as your district attorney, I’m asking you to return a verdict in this case of guilty

of voluntary manslaughter.” In justifying his actions, trial counsel testified that he

had employed this tactic in another case where his client was charged with

automobile theft. Trial counsel testified that in that case he “stood up and pled him

guilty to joy-riding and that’s what I thought he was guilty of, and I thought there

would be some value in telling the jury that.” Appellant testified that he never

agreed to allow trial counsel to argue that he was guilty before the jury.



         Before addressing the substance of Appellant’s claim of ineffective

assistance of counsel, we recognize that our scope of review is limited. In a petition

for post-conviction relief, the petitioner must establish his or her allegations by a

preponderance of the evidence. McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.

App. 1983) (citing Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978)).

Furthermore, the findings of fact made by a trial judge in post-conviction hearings

are conclusive on appeal unless the appellate court finds that the evidence

preponderates against the judgment. Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990).



         Cases addressing a defense counsel’s admission that his client is guilty

generally fall into one of two categories. Many courts have held that a defendant

was deprived of effective assistance of counsel where defense counsel admitted his

client’s guilt to the offense charged. See, e.g., Wiley v. Sowders, 647 F.2d 642 (6th

Cir. 1981); People v. Hattery, 488 N.E.2d 513 (Ill. 1985); State v. Harbison, 337

S.E.2d 504 (N.C. 1985); State v. Anaya, 592 A.2d 1142 (N.H. 1991). In this type of

case, counsel gives up his role as an advocate, effectively nullifies the defendant’s

                                            -3-
right to have his innocence decided by a jury of his peers, and fails to subject the

prosecution’s case to meaningful adversarial testing. In the second category,

counsel may stipulate to a particular element of the charge or issue of proof if he

believes it tactically wise and his argument does not amount to a functional guilty

plea. State v. Caldwell, 671 S.W.2d 459, 466 (Tenn. 1984). In Caldwell, defense

counsel in a capital murder trial was faced with overwhelming proof that the

defendant had shot the victim. Counsel admitted in closing argument that in fact his

client had fired the fatal shot. This decision was found to be tactically reasonable

under the circumstances since it left open the possibility of the jury finding the

defendant guilty of a lesser included offense. Id.; see also People v. Gant, 599

N.E.2d 1086, 1092 (Ill. App. Ct. 1992).



       It is clear that in the absence of the acquiescence of the client, an admission

by defense counsel in closing argument that the client is guilty constitutes ineffective

assistance of counsel. Wiley v. Sowders, 669 F.2d 386, 389 (6th Cir. 1992).

However, such a tactic may, in cases such as the one sub judice, be a perfectly

legitimate trial tactic where the client’s acquiescence is obtained. Id. An on-the-

record inquiry by the trial court outside the presence of the jury prior to admitting

guilt is the preferable procedure for insuring the defendant’s consent to this tactic.

Id. However, due process considerations do not mandate such an inquiry. Id.;

Lobosco v. Thomas, 928 F.2d 1054, 1057 (11th Cir. 1991); Reid v. Warden, N.H.

State Prison, 659 A.2d 429, 432 (N.H. 1995).



       In the instant case the preferred procedure described above was not

followed. Nonetheless, at the post-conviction hearing both Appellant’s primary trial

attorney and his co-counsel testified that Appellant was informed of and consented

to his attorneys concession of guilt to the lesser included offense of voluntary

manslaughter. Based on this evidence, the trial judge found that Appellant did in

                                           -4-
fact consent to this tactic. Under these circumstances we must accept the trial

judge’s finding as conclusive. Butler v. State, supra.



      Accordingly, the judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOE G. RILEY, JUDGE




                                          -5-
