             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            FEBRUARY 1998 SESSION
                                                        FILED
                                                          March 30, 1998

JIMMY DALE HIGH,                   )                    Cecil Crowson, Jr.
                                   )                    Appellate C ourt Clerk
            APPELLANT,             )
                                   )    No. 02-C-01-9702-CR-00069
                                   )
                                   )    Shelby County
v.                                 )
                                   )    Honorable W . Fred Axley, Judge
                                   )
                                   )    (Post-Conviction Relief)
STATE OF TENNESSEE,                )
                                   )
              APPELLEE.            )



FOR THE APPELLANT:                      FOR THE APPELLEE

R. Price Harris                         John Knox Walkup
Attorney at Law                         Attorney General & Reporter
3074 East Street                        425 Fifth Avenue, North
Memphis, TN 38128                       Nashville, TN 37243-0497

                                        Deborah A. Tullis
                                        Assistant Attorney General
                                        425 Fifth Avenue, North
                                        Nashville, TN 37243-0493

                                        William L. Gibbons
                                        District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103

                                        C. Alonda Horne
                                        Assistant District Attorney General
                                        201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103




OPINION FILED:_______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Jimmy Dale High (petitioner), appeals as of right from a judgment of

the trial court dismissing his post-conviction action after an evidentiary hearing. Three

issues are presented for review.        The petitioner contends (a) he was denied his

constitutional right to the effective assistance of counsel, (b) certain omissions occurred

during his trial which entitle him to relief, and (c) the trial court failed to address certain

grounds raised during the evidentiary hearing. After a thorough review of the record, the

briefs submitted by the parties, and the law governing the issues presented for review, it

is the opinion of this court that the judgment of the trial court should be affirmed.



                                              I.

                                  PRIOR PROCEEDINGS



       The petitioner was tried and convicted of robbery by a jury of his peers. He was

sentenced to serve fourteen (14) years in the Department of Correction. He subsequently

appealed his conviction and sentence as of right. This court affirmed the judgment of the

trial court. State v. Jimmy Dale High, Shelby County No. 02-C-01-9312-CR-00275, 1994

WL 553282 (Tenn. Crim. App., Jackson, October 12, 1994). The mandate was issued on

February 15, 1995.

       This action was filed on February 2, 1995. Counsel was appointed to represent the

petitioner on March 6, 1995. An amended petition was prepared and filed by counsel on

August 11, 1995. Present counsel was substituted as counsel of record on May 16, 1996.

       An evidentiary hearing was conducted on August 8, 1996. The trial court filed its

findings of facts and conclusions of law on September 11, 1996.



                                              II.

                                 STANDARD OF REVIEW



       When the trial court has conducted an evidentiary hearing to permit a petitioner to


                                              2
ventilate the grounds raised in support of an action for post-conviction relief, the trial court’s

findings of fact are afforded the weight of a jury verdict. Dixon v. State, 934 S.W.2d 69,

71-72 (Tenn. Crim. App. 1996); Teague v. State, 772 S.W.2d 932, 933-34 (Tenn. Crim.

App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989).

Consequently, this court is bound by the trial court’s findings of fact unless the evidence

adduced at the hearing preponderates against the trial court’s findings. Butler v. State, 789

S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994), per. app. denied (Tenn. 1995).

       There are several well-established rules which govern appellate review in post-

conviction cases. As this court said in Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990):


               First, this Court cannot reweigh or reevaluate the evidence; nor
               can we substitute our inferences for those drawn by the trial
               judge. Second, questions concerning the credibility of the
               witnesses, the weight and value to be given their testimony,
               and the factual issues raised by the evidence are resolved by
               the trial judge, not this Court. Third, the appellant has the
               burden in this Court of illustrating why the evidence contained
               in the record preponderates against the judgment entered by
               the trial judge.


       This court will now proceed to consider the merits of the petitioner’s contentions.

In doing so, this court will apply the aforementioned principles governing appellate review

in post-conviction actions to determine whether the evidence adduced at the hearing

preponderates against the trial court’s findings of fact. See Clenny v. State, 576 S.W.2d

12, 14 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d

1050 (1979).

                                               III.

                       INEFFECTIVE ASSISTANCE OF COUNSEL



       The petitioner contends the evidence preponderates against the trial court’s findings

of fact that he was afforded his constitutional right to the effective assistance of counsel.

He argues the evidence adduced at the evidentiary hearing establishes trial counsel failed

to (a) properly investigate the case and file appropriate motions, (b) conduct a Morgan



                                                3
hearing, (c) object to the testimony of Henry S. Baker, a co-defendant, when Baker stated

on direct examination the petitioner had been an inmate at the Shelby County Correctional

Center, (d) vigorously cross-examine Baker, (e) request the trial court to charge the range

of punishment and the lesser included offenses supported by the evidence, and (f) object

to the uncorroborated testimony given by Baker.



                                              A.



          When the petitioner seeks to vitiate a conviction on the ground he was denied his

constitutional right to the effective assistance of counsel, the petitioner must establish by

a preponderance of the evidence (a) the services rendered or advice given by counsel fell

below “the range of competence demanded of attorneys in criminal cases,” Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of counsel enured

to the prejudice of the petitioner. Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim.

App.), per. app. denied (Tenn. 1980). The United States Supreme Court subsequently

adopted this two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). The Tennessee appellate court decisions following Strickland are

legion.

          This court’s review is guided by certain well-established standards. First, the

standard created in Baxter does not require perfect representation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Second, it is not the function of an appellate court to “second

guess” trial counsel’s tactical and strategic choices pertaining to matters of defense unless

these choices were made without knowledge of the relevant facts or the law applicable to

the issue. Hellard, 629 S.W.2d at 9; McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim.

App.), per. app. denied (Tenn. 1983); see People v. Corona, 80 Cal. App.3d 684, 145 Cal.

Rptr. 894 (1978).      As the supreme court said in Hellard: “[T]he defense attorney’s

representation, when questioned, is not to be measured by ‘20-20 hindsight.’” 629 S.W.2d

at 9. Third, an accused is not deprived of the effective assistance of counsel because a

different procedure or strategy might have produced a different result. Williams, 599

S.W.2d at 279-80; Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied



                                              4
(Tenn. 1974).

                                              B.



       The petitioner asserts counsel was ineffective because he failed to perform the acts

hereinabove set forth. The testimony of the petitioner and counsel conflict regarding these

assertions. Moreover, the petitioner has failed to establish he was prejudiced assuming

arguendo his assertions are accurate. Thus, the evidence contained in the record does

not preponderate against the trial court’s findings of fact. Butler, 789 S.W.2d at 899;

Adkins, 911 S.W.2d at 347.



                                              (1)



       The petitioner asserts counsel failed to visit him in the jail a sufficient number of

times, failed to talk to him on the telephone, failed to conduct proper discovery, failed to

talk to potential witnesses, and failed to file sufficient motions. This court will address each

of these assertions.

       The petitioner testified trial counsel came to see him in the jail on two occasions.

Both of these occasions were shortly before the trial was to commence. Counsel testified

he went to see the petitioner on three or four separate occasions. The petitioner testified

counsel would not talk to him on the telephone and he would disconnect his calls or hang

up the receiver while talking to him. Counsel testified the petitioner would call him every

time he had telephone privileges. He would call counsel between 8:00 A.M. and 9:00 A.M.

practically every morning and on Sundays. Counsel stated he never refused to talk with

the petitioner. However, counsel admitted on rare occasions it was possible the petitioner

may have been accidentally disconnected or counsel may have inadvertently failed to take

the call. According to counsel, the employees who answered the telephone in his office

were instructed not to inquire who was calling. Thus, counsel never knew who was calling

him until he answered the telephone.

       The record establishes trial counsel went to the District Attorney General’s Office

and read their entire file on the petitioner. Later, he returned and obtained copies of



                                               5
certain documents. He took these documents to the jail and permitted the petitioner to

review them. The petitioner admitted he saw his statement, Baker’s statement, a list of the

petitioner’s convictions the state intended to use to impeach him if he opted to testify in

support of his defense, and a list of the petitioner’s prior convictions the state intended to

use to enhance his sentence. Counsel also discussed with the petitioner the evidence the

state would introduce if he went to trial. In addition, trial counsel advised the petitioner

Baker was going to “dump on him,” meaning testify as a prosecution witness, if he went to

trial.

         The petitioner gave trial counsel the names of three witnesses, and he told trial

counsel what each witness would say if called as a witness. Counsel told the petitioner the

testimony would not be admissible as evidence. The petitioner admitted trial counsel

talked with a drug counselor at the Shelby County Correctional Center, who was one of the

witnesses named by the petitioner. Counsel talked to the remaining two witnesses prior

to trial. These interviews confirmed trial counsel’s initial conclusion that the testimony of

the witnesses would not be admissible. One of the witnesses appeared at the trial “half-

high.” The petitioner agreed to release this witness.

         The petitioner did not call these witnesses during the evidentiary hearing. Assuming

arguendo trial counsel fell below the standard expected of counsel in criminal prosecutions,

Baxter v. Rose, supra, the petitioner has failed to establish prejudice by not producing the

witnesses at the evidentiary hearing. Black, 794 S.W.2d at 757-58.

         The petitioner asserts counsel failed to file appropriate motions. However, the

petitioner has failed to (a) establish the motions trial counsel should have filed and (b)

show how he was prejudiced by the failure of counsel to file these motions.

         In summary, the petitioner has failed to establish trial counsel’s representation fell

below the standard established in Baxter v. Rose, supra. Also, the petitioner has failed to

establish how he was prejudiced. Strickland v. Washington, supra.



                                              (2)



         The petitioner asserts trial counsel was ineffective because he failed to conduct a



                                               6
Morgan hearing. Trial counsel advised the trial court he wanted a Morgan hearing before

he cross-examined Baker. While both the assistant district attorney general and the trial

court advised counsel a Morgan hearing was to determine the admissibility of an accused’s

prior convictions, the trial court told counsel he would conduct the hearing. Counsel then

advised the court such a hearing would not be necessary. This court must assume this is

the hearing which the petitioner has raised in his petition.

       The assistant district attorney general asked Baker about his prior convictions

during a jury-out hearing. He told Baker trial counsel would question him about his prior

convictions. The assistant district attorney general elicited all of Baker’s prior convictions

during direct examination. Trial counsel also questioned Baker about these same prior

convictions. Neither counsel objected to the admissibility of these convictions.

       In summary, a Morgan hearing, or any hearing of a like or similar nature, was not

necessary in this case. The assistant district attorney general stipulated to the prior

convictions and asked Baker about these convictions. Defense counsel was permitted to

ask similar questions during cross-examination. Thus, the petitioner has failed to establish

either that trial counsel fell below the Baxter v. Rose standard or the petitioner was

prejudiced in this regard.

                                             (3)



       The petitioner asserts trial counsel failed to object to Baker’s testimony as it related

to the petitioner’s “prior criminal history or status at the time” of the robbery. The record

reflects the petitioner and Baker were inmates at the Shelby County Correctional Center.

During a work detail, the petitioner and Baker escaped. They committed the robbery of a

convenience store a few days later. Baker stated on direct examination:


              Q. You know Jimmy Dale High, is that correct?

              A. Yes, sir.

              Q. Okay. I believe back in 1991 you-all escaped from the
              penal farm together; is that correct?

              A. Yes, sir.

              Q. Would you tell the jury about your escape and what you-all
              did as far the Circle K robbery on 1440 Getwell?

                                              7
              A. When we escaped from the -- walked off from the Mid-
              America Mall on work call, it was a lot of things that happened
              up to a point. It was at one point, as far as the robbery goes,
              we was in a truck.


       Trial counsel was not ineffective because he failed to object to this testimony. This

evidence was admissible to establish why the petitioner and Baker were together when

they committed the robbery of the convenience store; the evidence was therefore relevant

to establish a material fact. See State v. Adkisson, 899 S.W.2d 626, 646 (Tenn. Crim.

App. 1994). Moreover, if this issue had been considered on direct appeal, it would have

been categorized as harmless error given the wealth of evidence establishing the

petitioner’s guilt. Tenn. R. App. P. 36(b).



                                              (4)



       The defendant asserts counsel was ineffective because he failed to vigorously

cross-examine Henry S. Baker, the accomplice. He refers to counsel’s cross-examination

as “inadequate and lackadaisical.” This court has read the testimony of Henry S. Baker.

The record reveals the cross-examination of Baker was thorough, penetrating, and

complete.

       Trial counsel questioned Baker at length. He established numerous conflicts

between Baker’s trial testimony and the statement he gave to the police after his arrest.

He questioned Baker regarding his prior convictions. In addition, counsel used Baker’s

testimony to mitigate the petitioner’s involvement in the robbery. The cross-examination

was methodical, and it is obvious trial counsel was well prepared to cross-examine Baker.



                                              (5)



       The defendant asserts trial counsel was ineffective because he did not pursue the

convicting trial court’s failure to charge the lesser included offense of theft under $500.

The petitioner failed to establish what trial counsel could have done to pursue this matter.

       Baker had told the police he did not have a weapon, he did not intimate he had a


                                              8
weapon, and he did not coerce the victim. The amount taken was $28. Of course, Baker’s

trial testimony established he placed his hand in his back pocket, and he told the victim he

did in fact have a weapon.

       Trial counsel moved the trial court to instruct the jury on theft under $500 based

upon his cross-examination of Baker. The trial court refused to give the instruction. This

issue was litigated in the petitioner’s appeal as of right.

       In summary, trial counsel protected the record regarding this instruction, and it was

raised on appeal. This court held such an instruction was not warranted. Counsel certainly

could not coerce or compel either the trial court or the appellate court to grant him relief on

this issue.

                                              (6)



       The petitioner asserts counsel was ineffective because he failed to object to the

uncorroborated testimony of Henry S. Baker, an accomplice of the petitioner. He has failed

to establish a valid basis for objecting to this testimony.

       This court seriously doubts trial counsel could initially object to Baker’s testimony.

Baker was a competent witness, he had firsthand knowledge of the events in controversy,

and his testimony was both material and relevant to the crime. If the state failed to

corroborate Baker’s testimony, trial counsel could have moved to strike Baker’s testimony,

or, in the alternative, moved the trial court for the entry of a judgment of acquittal on the

ground the only testimony connecting the petitioner to the robbery was Baker’s

uncorroborated testimony.

       While this court agrees Baker was an accomplice of the petitioner as a matter of

law, and the trial court should have given an instruction on the need to corroborate the

testimony of an accomplice, this record is insufficient to determine whether such an

instruction was given to the jury. The charge of the trial court is not included in the record

transmitted to this court. Tenn. R. App. P. 24(b). In any event, the record establishes

Baker’s testimony was corroborated.         The petitioner’s statement to the police was

introduced into evidence. This statement established the petitioner was with Baker when

the robbery occurred. Otherwise, the petitioner’s statement was exculpatory.



                                              9
                                                IV.

                          CONVICTING TRIAL COURT OMISSIONS



          The petitioner contends the trial court committed egregious error which resulted in

his conviction. He alleges the court (a) gave an inadequate charge to the jury because the

charge did not include certain lesser included offenses raised by the evidence, (b) allowed

the uncorroborated testimony of Baker to be disseminated to the jury, and (c) failed to

include a constitutional reasonable doubt instruction in the charge given to the jury.

          These grounds have either been previously determined or waived. Tenn. Code

Ann. § 40-30-112 (repealed 1995). A ground has been previously determined when “a

court of competent jurisdiction has ruled on the merits after a full and fair hearing.” Tenn.

Code Ann. § 40-30-112(a)(1990) (repealed 1995).

          As to waiver, the applicable statute, Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)

states:
                 A ground for relief is “waived” if the petitioner knowingly and
                 understandingly failed to present it for determination in any
                 proceeding before a court of competent jurisdiction in which
                 the ground could have been presented.

                 There is a rebuttable presumption that a ground for relief not
                 raised in any such proceeding which was held was waived.


These grounds could have been raised during the trial and on appeal. Moreover, the

petitioner did not offer any proof to rebut the waiver of these issues.

          This court views this issue as an attempt to obtain appellate review of these

grounds. It has long been established in this jurisdiction that a post-conviction proceeding

cannot be used as a substitute for an appeal. Swanson v. State, 749 S.W.2d 731, 733

(Tenn. 1988); State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987); Rhoden v. State,

816 S.W.2d 56, 63 (Tenn. Crim. App.), per. app. denied (Tenn. 1991).

          This issue is without merit.


                                                V.

                      POST-CONVICTION TRIAL COURT OMISSIONS


          The petitioner contends the post-conviction trial court failed to rule on all issues he


                                                10
raised at the evidentiary hearing. He argues the court failed to address paragraphs B

through E contained in his petition, and the court further failed to determine the merits of

“the oral amendments” made during the evidentiary hearing.

       The evidentiary hearing transcript reveals petitioner’s counsel stated:


               And I’d like to also -- we’ll amend that it is time to include or to
               broaden that to include that we are requesting instruction from
               the Court as to lesser pleaded offenses. It may have been
               clearer, for example, facilitation to commit a felony.


       The petitioner does not cite the page or pages where paragraphs B through E are

located in the record. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Thus,

this court must assume the petitioner makes reference to the following grounds contained

in the pro se petition: (a) “instruct the jury as to accomplice testimony,” (b) allowing

“uncorroborated accomplice testimony to be used to convict the petitioner,” (c) “properly

instruct the jury as to the corroboration rule of an accomplice’s testimony,” and (d) his

“rights to due process were violated when the jury was not informed of the plea deal of the

co-defendant.”

                                               A.



       The law applicable to the proceedings in this case provides that post-conviction

actions were commenced by the filing of a “written petition with the clerk of the court where

the conviction occurred.” Tenn. Code Ann. § 40-30-103(a)(1990) (repealed 1995). The

petitioner was entitled to amend the petition. Tenn. Code Ann. § 40-30-107(1990)

(repealed 1995). While the statute does not state the amended petition must be in written

form, the statute by implication requires the amended petition to be in written form because

the statute states the petitioner is to “file” the amended petition with the clerk. Tenn. Code

Ann. § 40-30-107(1990) (repealed 1995). This statute relates back to the statute requiring

the filing of a written petition.

       In this case, the initial petition was filed on February 2, 1995. The first attorney was

appointed to represent the petitioner on March 6, 1995. Counsel filed an amended petition

on August 11, 1995. Present counsel was substituted as counsel of record on May 16,

1996. The evidentiary hearing was held on August 6, 1996. Thus, the petitioner had

                                               11
eighteen months to amend his petition. Present counsel had almost three months to

further amend the petition.

       The record does not reflect a motion and/or order pertaining to an amendment. Nor

did the petitioner make an oral motion which specifically requested permission to amend

the petition. Furthermore, the petitioner did not file a written amendment during or after the

evidentiary hearing.

       In summary, the petitioner had ample time to amend his petition in written form.

This court will not consider any issue raised by an oral amendment unless the trial court

specifically states on the face of the record it is permissible.



                                              B.



       This court will now address whether paragraphs B through E of the petition were

adequately addressed by the trial court.



                                             (1)



       The ground predicated upon the failure to instruct the jury has been raised in the

context of the trial court’s effectiveness within the meaning of the Sixth Amendment to the

United States Constitution and Article I, § 9 of the Tennessee Constitution. This issue has

also been raised in the context of the trial court’s “allowance of uncorroborated testimony

of the co-defendant to be disseminated to the jury.”

       This ground has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)

(1990) (repealed 1995).       The petitioner has failed to offer evidence rebutting the

presumption of waiver. Also, a post-conviction action cannot be used as a substitute for

an appeal. Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816

S.W.2d at 63.

                                             (2)



       The petitioner asserts the post-conviction court failed to consider the convicting trial


                                              12
court’s allowance of “uncorroborated accomplice testimony to be used to convict the

petitioner.” This issue has been previously discussed in this opinion.

       Again, this issue has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2)

(1990) (repealed 1995). The petitioner failed to offer evidence to rebut the presumption

of waiver. Furthermore, this proceeding cannot be used as a substitute for an appeal.

Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816 S.W.2d at 63.



                                             (3)



       The petitioner asserts the post-conviction court failed to consider the error of the

convicting trial court in omitting an instruction regarding the necessity of corroborating the

testimony of an accomplice. This ground has been discussed previously.

       As this court previously noted, the record is insufficient to permit a review of this

issue. The trial court’s charge has not been included in the record transmitted to this court.

Tenn. R. App. P. 24(b).

       If the charge had been included in the record, this court would not consider this

ground. It has been waived. Tenn. Code Ann. § 40-30-112(b)(1) and (b)(2) (1990)

(repealed 1995). The petitioner has offered no evidence to rebut the presumption of

waiver. Also, a post-conviction action cannot be used as a substitute for an appeal.

Swanson, 749 S.W.2d at 733; McClintock, 732 S.W.2d at 272; Rhoden, 816 S.W.2d at 63.



                                             (4)



       The petitioner asserts he was denied due process of law because “the jury was not

informed of the plea deal of the co-defendant,” Henry S. Baker. The petitioner established

the plea agreement ultimately reached between the state and Baker. However, the record

is devoid of evidence as to when the agreement was reached.




                                             13
      During trial counsel’s cross-examination of Baker, the following colloquy occurred:

             Q. Now, Mr. Craft asked you if you’ve been offered any
                deals or pleas or whatever in connection with this
                matter, did he not?

             A. Yes, sir, he did.

             Q. And I believe he asked you, other than something in
                exchange for your testimony, other than something
                that’s already been offered to you right? Did he ask
                you that?

             A. Yes, sir.

             Q. You’ve been made an offer to plead guilty in this case,
                have you not?

             A. Yes, sir.

             Q. Sir?

             A. Yes, sir.

             Q. How much time were you offered to plead guilty in this
                cause?

             A. Six years.


      As can be seen from the foregoing colloquy, the offer made by the state to Baker

was before the trial court and the jury. Of course, the trial court could have rejected the

plea agreement: Whether Baker should have been released on probation or under the

Community Corrections Act rested within the sound discretion of the trial court.

      This issue is without merit.




                                     ____________________________________________
                                           JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
        JOHN H. PEAY, JUDGE



______________________________________
     THOMAS T. WOODALL, JUDGE


                                            14
