            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            DECEMBER 1999 SESSION

                                                           FILED
KENNETH WEEMS,                  *      C.C.A. # W1999-00033-CCA-R3-PC
                                                            February 2, 2000
      Appellant,                *      SHELBY COUNTY
                                                           Cecil Crowson, Jr.
VS.                             *                        Appellate Court Clerk
                                       Hon. John P. Colton, Jr., Judge

STATE OF TENNESSEE,             *      (Post-Conviction)

      Appellee.                 *




For Appellant:                         For Appellee:
John E. Finklea, Attorney              Paul G. Summers
99 North Third Street                  Attorney General and Reporter
Memphis, TN 38103
(on appeal)                            Clinton J. Morgan
                                       Counsel for the State
Wayne Chastain, Attorney               425 Fifth Avenue North
66 Monroe, Suite 804                   Nashville, TN 37243
Memphis, TN 38103
(at evidentiary hearing)               P.T. Hoover
                                       Assistant District Attorney General
                                       Criminal Justice Center
                                       Third Floor
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Kenneth Weems, appeals the trial court's denial of his

petition for post-conviction relief. The single issue presented for review is whether
the petitioner was denied the effective assistance of counsel for having failed to

timely file an interlocutory appeal of an order denying the suppression of certain of

the state's evidence. We find no error and affirm the judgment of the trial court.


              On June 29, 1995, the petitioner was convicted of the first degree

murder of his girlfriend, Alice Hurt, and the second degree murder of their unborn
son, a viable fetus. The victim, who was stabbed to death, was eight and one-half

months pregnant. The trial court imposed a life sentence for first degree murder

and a sentence of fifteen years for the second degree murder. This court affirmed
the conviction and sentence on direct appeal. State v. Kenneth L. Weems, No.

02C01-9401-CR-00011 (Tenn. Crim. App., at Jackson, July 26, 1996). On January

6, 1998, the petitioner filed this petition for post-conviction relief alleging, among

other things, that he was denied the effective assistance of counsel. At the

evidentiary hearing, the petitioner contended that his trial counsel failed to discuss
any possible claims of defense, failed to interview defense witnesses individually,

failed to present any exculpatory evidence, failed to object to improper jury

instructions, and failed to timely file an interlocutory appeal. The petitioner testified
on his own behalf and called three other witnesses.



              The state's proof consisted of the testimony of the petitioner's trial
counsel. At the conclusion of the hearing, the trial court made detailed findings

addressing each and every assertion made by the petitioner. The trial court

determined that trial counsel had rendered services well within the professional

guidelines.


              In this appeal, the petitioner specifically complains that the trial court

erred by concluding that trial counsel was not ineffective when he failed to timely file
an interlocutory appeal of an order denying the suppression of an enhanced audio


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tape recording of events occurring at or near the time of the murder. The petitioner

argues that trial counsel gave no explanation for having failed to file the interlocutory

appeal other than the issue, even if resolved favorably to the defense, was not
dispositive of the case. The petitioner insists that the "outcome ... may have been

different ... had this important issue been resolved by interlocutory appeal."



              In order for petitioner to be granted relief on grounds of ineffective

counsel, he must establish that the advice given or the services were not within the

range of competence demanded of attorneys in criminal cases and that, but for his
counsel's deficient performance, the result of his trial would have been different.

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington, 466 U.S.

668 (1984). In a post-conviction proceeding, the petitioner has the burden of
proving factual allegations by clear and convincing evidence. Tenn. Code Ann. §

40-30-210(f). The findings of fact made by the trial court are conclusive on appeal

unless the petitioner is able to establish that the evidence preponderates against

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

State, 512 S.W.2d 603 (Tenn. Crim. App. 1973).


              This court may not second-guess the tactical and strategic choices of

counsel unless those choices are uninformed because of inadequate preparation.
Hellard v. State, 629 S.W .2d 4 (Tenn. 1982). Counsel may not be deemed to have

been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App.
1980).



              In our view, the petitioner has failed to establish that he was prejudiced

by the failure of the petitioner to file a timely interlocutory appeal. While an
application for permission to appeal must be filed "within ten days after the date of

entry of the order in the trial court or the making of the proscribed statement by the

trial court, whichever is later ...," there were substantive reasons for the denial of the
appeal. See Tenn. R. App. P. 9. In denying the interlocutory appeal, a panel of this


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court ruled that the appeal, had it been timely filed, would not have been allowed

because it was not dispositive of the case:

              This court will not grant an application for interlocutory
              appeal if the interlocutory order of the trial court is merely
              a step towards the disposition of the case; and the
              appellant can raise the issue on a direct appeal if he is
              convicted. State v. Gawlas, 614 S.W.2d 74 (Tenn. Crim.
              App. 1980). A ruling on a motion to suppress or exclude
              evidence is clearly a step taken in the disposition of a
              criminal case on the merits; and this court will not grant
              an application for an interlocutory appeal to review the
              judgment of the trial court denying such a motion. State
              v. Hartsville, 629 S.W.2d 907 (Tenn. Crim. App. 1980).

So, whether the interlocutory appeal was timely filed or not, this court would not
have considered the issue. Moreover, the petitioner argued on direct appeal that

the failure to suppress the evidence warranted a reversal of the conviction and a

new trial. The petitioner specifically alleged that "the trial court committed error of
prejudicial dimensions by permitting the jury to listen to the enhanced version of

what was contained on the audio tape removed from the victim's pocket." The tape

included the victim saying, among other things, "No, no, no, oh, no, Kenny, no. Why

you want to do this? No, no." Screams were audible. In the direct appeal, this

court concluded that the tape, "highly probative of the victim's and appellant's
actions before, during, and after the killing," was admissible as evidence. Whether

the issue was presented in an interlocutory appeal or in the direct appeal, the result

would have been the same. The petitioner could not have been prejudiced by the
failure of his counsel to have filed a timely interlocutory appeal.



              Accordingly, the judgment is affirmed.


                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John Everett W illiams, Judge



_____________________________
Norma McGee Ogle, Judge

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