         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs February 3, 2004

               STATE OF TENNESSEE v. CHARLES RAY ALLEN

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 98-C-1969    J. Randall Wyatt, Judge



                    No. M2002-03144-CCA-R3-PC - Filed February 4, 2004


The Defendant, Charles Ray Allen, was convicted by a jury of first degree premeditated murder and
attempted voluntary manslaughter. The Defendant subsequently filed for post-conviction relief
alleging, among other things, ineffective assistance of counsel at trial. After an evidentiary hearing,
the trial court denied relief, and the Defendant now appeals. We affirm the judgment of the trial
court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Michael Colavecchio, Nashville, Tennessee, for the appellant, Charles Ray Allen.

Paul G. Summers, Attorney General; Jennifer L. Bledsoe, Assistant Attorney General; Victor S.
Johnson, District Attorney General; and Kimberly Cooper, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

       On April 15, 1998, the Defendant, Charles Ray Allen, shot and killed one person and shot
and injured another person. The shootings occurred at lunchtime in a restaurant in Nashville. He
was charged with first degree premeditated murder and attempted first degree premeditated murder.
Following a jury trial, he was convicted of first degree premeditated murder and attempted voluntary
manslaughter. His convictions were affirmed on appeal. See State v. Charles Ray Allen, No.
M1999-00818-CCA-R3-CD, 2000 WL 1649507 (Tenn. Crim. App., Nashville, Nov. 3, 2000). The
defendant subsequently filed a petition for post-conviction relief, which the trial court denied after
an evidentiary hearing. This appeal followed.

       In this appeal, the Defendant alleges that the trial court erred in failing to find that his trial
lawyer was ineffective in the following respects: (a) his lawyer allowed him to testify that he was
incarcerated at the time of trial; (b) his lawyer did not seek a mental evaluation of him; (c) his lawyer
did not attempt to suppress his statement to the police; (d) his lawyer allowed one of his witnesses
to testify while wearing jail clothes; and (e) his lawyer failed to call two defense witnesses. We turn
now to the proof adduced at the post-conviction hearing.

        Mr. Larry Hoover, who represented the Defendant at his jury trial, testified that he made a
strategic decision to notify the jury that the Defendant was, at that time, serving time in prison. Mr.
Hoover stated,

        My reasoning for doing that, and it was one that I had given some thought to prior to
        trial. We were looking to not have him found guilty of First Degree Murder. We
        really wanted the Jury or were asking the Jury -- spent a lot of time talking to the Jury
        about lesser included offenses. My thinking was I didn’t want the Jury thinking if
        they did convict him of something less than First Degree Murder that he was just
        going to get away with it, scot free. I wanted them to know that he had spen[t] some
        time in jail for this particular offense, and that he was not just going to get up and
        walk out of the courtroom if they found him not guilty or they found him guilty of
        something less than First Degree Murder.

With respect to having the Defendant examined by a mental health professional, Mr. Hoover stated
that he did not see the need for one as there was no indication that the Defendant had any mental
problems. As to the Defendant’s statement to the police, Mr. Hoover explained that he did not think
there were grounds to have it suppressed. Furthermore, there was information in the statement that
was helpful to the defense case. As to one of the defense witnesses testifying while in jail clothes,
he stated “if I did it all over again, I would have had her dressed in regular street clothes, but, at the
time, we did not.” Mr. Hoover explained that he did not call potential defense witness Trenell
Copeland because, although he was present at the trial, he “wasn’t necessarily in the right frame of
mind to testify.” Mr. Hoover explained that he did not know if Mr. Copeland “was intoxicated or
high or both, but . . . it just looked like a real bad idea for me to have him testify.” As to potential
defense witness Kenneth Patton, Mr. Hoover explained that Mr. Patton failed to appear at the
courthouse when expected, and the defense team’s efforts to locate him were unsuccessful. Mr.
Hoover also explained that, although he was hopeful of putting Mr. Patton on the stand, he “knew
it was going to be a close call as far as admissibility was concerned.” Mr. Hoover also stated that
Mr. Patton “was a little bit of an iffy witness.”

       The Defendant also testified at the hearing. He stated that Mr. Hoover had never spoken with
him about a mental evaluation. He also stated that he did not have any mental health issues that his
lawyer needed to know about. No other witnesses testified on the Defendant’s behalf.

        The trial court found that most of Mr. Hoover’s actions about which the Defendant
complained were strategic choices. The court also found that Mr. Hoover “acted in a competent and
thorough manner, and the [Defendant’s] factual allegations do not support a claim for ineffective
assistance of counsel.”


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         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462; Hellard v. State, 629
S.W.2d 4, 8 (Tenn. 1982). The reviewing court must be highly deferential to counsel’s choices “and
should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court
should not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard, 629 S.W.2d at 9, and counsel’s alleged errors should be judged in light of all the facts
and circumstances as of the time they were made. See Strickland, 466 U.S. at 690; Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

        We agree with the trial court that the Defendant has failed to meet his burden of proving
either prong of his claim of ineffective assistance of counsel. The proof established that Mr.
Hoover’s performance did not fall below the required standard. Furthermore, the proof failed to
demonstrate that the Defendant suffered any prejudice resulting from any of the alleged deficiencies.
The Defendant’s allegations being without merit, we affirm the judgment of the trial court.


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      ___________________________________
      DAVID H. WELLES, JUDGE




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