         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 8, 2000

              AARON BERNARD GRAY v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                           No. C-99-055     Joe C. Morris, Judge



                    No. W2000-00645-CCA-R3-PC - Filed January 5, 2001


The Defendant, Aaron Bernard Gray, appeals as of right from the dismissal of his petition for post-
conviction relief. On appeal, he asserts that he should have been granted post-conviction relief
because he was denied the effective assistance of counsel at trial, because the trial court abused its
discretion by finding the victim competent to testify, and because the trial court abused its discretion
by failing to grant a mistrial. We hold that the Defendant has failed to establish that he was denied
the effective assistance of counsel and that his other two issues are either waived or previously
determined. Thus, we affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Pamela J. Drewery, Jackson, Tennessee, for the appellant, Aaron Bernard Gray.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the
appellee, State of Tennessee

                                              OPINION

        The Defendant was indicted for and convicted of aggravated robbery and aggravated assault.
He was sentenced to concurrent sentences of twelve years as a Range I offender for the aggravated
robbery and ten years as a Range II offender for the aggravated assault. On direct appeal, this Court
reversed the Defendant’s aggravated assault conviction upon finding that the Defendant’s
convictions for both aggravated robbery and aggravated assault violated his constitutional protections
against double jeopardy. See State v. Aaron Benard Gray, No. 02C01-9707-CC-00270, 1998 WL
211791, at *3 (Tenn. Crim. App., Jackson, May 1, 1998), perm. app. denied (Tenn. Dec. 7, 1998).
Both convictions were based upon the same set of facts: the Defendant robbed Joe Hunt, with whom
he lived, by putting a knife to Mr. Hunt’s throat and demanding money; according to Mr. Hunt, the
Defendant took $3 from his wallet and left the residence. See id. at *1. The Defendant’s aggravated
robbery conviction and accompanying sentence were affirmed in all respects. See id. at *7. In
affirming that conviction and sentence, this Court ruled that the evidence was sufficient to support
the conviction, that the trial court did not abuse its discretion by ruling that the victim was competent
to testify, and that the trial court did not err by imposing the maximum sentence. See id. at *4-6.

         On February 19, 1999, the Defendant filed a pro se petition for post-conviction relief.
Counsel was subsequently appointed, and an amended petition was filed on November 12, 1999,
alleging that the Defendant received ineffective assistance of counsel at trial. An evidentiary hearing
was held on March 13, 2000, at which the Defendant and his trial counsel, Vanessa King, testified.
At the hearing, the Defendant complained that Ms. King did not investigate his case adequately
because she did not interview the victim, Joe Hunt. He asserted that if Ms. King had interviewed
Mr. Hunt, she would have discovered that Mr. Hunt was mentally incompetent. The Defendant
claimed that Ms. King should have obtained Mr. Hunt’s medical records and introduced them to
prove that he was incompetent. The Defendant appeared to argue that if the jury had known Mr.
Hunt was incompetent, it would not have convicted him. He asserted that Mr. Hunt loaned him the
$3 but lied about it at trial. He admitted that the trial court ruled that Mr. Hunt was competent to
testify, but he asserted that Ms. King should have filed a pre-trial motion regarding Mr. Hunt’s
competency.

        The Defendant also asserted that Ms. King should have objected to the indictment because
he was improperly charged with both aggravated assault and aggravated robbery. In addition, he
claimed that Ms. King should have requested a mistrial when a juror revealed to the court that she
recognized the victim because she had seen him on the street begging for money. Evidently, a juror
recognized the victim after the trial started, which she revealed to the court during a break. While
she admitted that she had some preconceived notions about the victim’s mental condition, she
indicated that she could be fair and impartial. The Defendant also made other general allegations,
essentially asserting that Ms. King “didn’t do nothing.”

         Vanessa King testified that she interviewed the investigators prior to trial, but she did not
interview the victim. She also said that she did not request that the State elect the charge upon which
it wanted to proceed because the trial court traditionally allowed all charges to go the jury. She
testified that she adequately represented the Defendant. She said that she interviewed him on several
occasions, that she gave him copies of all of the discovery materials, that she talked to the witnesses,
and that she discussed the victim’s mental condition with the Defendant. She said that she explained
to the Defendant that competence had to do with understanding the responsibility of telling the truth
and that if the defense raised the issue of the victim’s mental condition, that condition could be used
against the Defendant as an enhancing factor for sentencing if the Defendant was found guilty at
trial.

        Ms. King testified that the Defendant’s case was very simple: it came down to whether the
jury believed the victim’s version of events or the Defendant’s version of events. She said that the



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jury had the opportunity to see Mr. Hunt testify and to evaluate his testimony and competence.
Obviously, the jury chose to accredit Mr. Hunt’s testimony.

       After hearing the evidence, the trial court denied post-conviction relief, stating,

               The Court rules that the petitioner has not carried his burden of proof and that
       trial counsel’s performance in no way resulted in any abridgment of any
       constitutional right of the petitioner.
               The Court finds that the defendant has not presented any proof in this matter
       as to anything that counsel should have done [or] could have done that was in
       violation of any constitutional right.
               [It] is specifically found that the matter of the victim’s competency to testify
       has been raised at trial and also ruled upon by the court of criminal appeals and
       therefore cannot be raised in the present petition. Further even if the matter could be
       raised no competent proof has been submitted to the court to demonstrate that the
       victim could not qualify as a witness to testify.
               As to the issue regarding the failure to challenge the juror who knew about
       the victim’s mental condition. The defendant has failed to demonstrate how he was
       prejudiced in that he specifically testified that he wanted the jury to know about the
       victim’s mental condition. Further the matter was addressed at the trial level and the
       state and defense counsel were both able to question the juror and there was no
       indication that the juror would in any way be disqualified from sitting as a juror. The
       juror was in no [way] biased or prejudiced and was able to set these factors aside and
       determine the case based upon the facts and law as it was set forth during the trial.
               As to the issue of the indictment for both [a]ggravated robbery and aggravated
       assault this issue was addressed at the appellate level and the aggravated assault was
       dismissed as a violation of double jeopardy . . . .
               As to all other issues the Court finds that the petitioner has failed to carry his
       burden of proof in that he has failed to demonstrate by clear and convincing proof
       that the trial counsel was in any way ineffective or failed to do any thing that in any
       way violated any constitutional or statutory right of the defendant.


         On appeal, the Defendant lists eleven issues presented for review, mostly dealing with
different ways in which counsel was ineffective, but he argues only three of those issues. Because
the Defendant failed to present any argument or authority regarding eight of his claimed issues, those
issues are waived. See Tenn. Ct. Crim. App. R. 10(b); State v. Killebrew, 760 S.W.2d 228, 231
(Tenn. Crim. App. 1988). The Defendant does, however, assert that Ms. King was ineffective for
failing to subpoena the victim’s medical records prior to trial and to use those records to impeach
the victim before the jury; that the trial court abused its discretion by failing to find the victim
incompetent; and that the trial court abused its discretion by failing to grant a mistrial when a juror
revealed that she knew the victim.



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        We first note that the Defendant’s last two issues, dealing with whether the trial court abused
its discretion by failing to find the victim incompetent and by failing to grant a mistrial, are not
properly before us. While those issues may have been raised by the Defendant in his pro se petition,
they were not included in the amended petition for post-conviction relief filed by counsel. The only
issue raised in the amended petition and argued at the evidentiary hearing was whether the Defendant
was denied the effective assistance of counsel at trial. We will not consider issues raised for the first
time on appeal. See State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App. 1995). Moreover,
grounds for relief that have been previously determined or waived are not cognizable in a post-
conviction proceeding. See Tenn. Code Ann. § 40-30-206(f). A ground for relief has been
previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair
hearing. See id. § 40-30-206(h). A ground for relief has been waived if the defendant failed to
present it for determination in any proceeding before a court of competent jurisdiction in which the
ground could have been presented. See id. § 40-30-206(g). On direct appeal, this Court specifically
found that the trial court did not abuse its discretion by finding that the victim was competent to
testify. See Aaron Benard Gray, 1998 WL 211791, at *5. Thus, this issue has been previously
determined. While the Defendant did not raise the issue of whether the trial court abused its
discretion by failing to grant a mistrial, this issue could have been raised on direct appeal. Thus, this
issue has been waived.

         We now turn to the Defendant’s allegation that he received ineffective assistance of counsel
at trial. To determine whether counsel provided effective assistance at trial, the court must decide
whether counsel’s performance was within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his
or her counsel was ineffective at trial, a defendant bears the burden of showing that counsel made
errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth
Amendment and that the deficient representation prejudiced the defendant resulting in a failure to
produce a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984); Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the
second prong, the defendant must show a reasonable probability that, but for counsel’s unreasonable
error, the fact finder would have had reasonable doubt regarding petitioner’s guilt. Strickland, 466
U.S. at 695. This reasonable probability must be “sufficient to undermine confidence in the
outcome.” Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to
second-guess trial strategy and criticize counsel’s tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). Counsel’s alleged errors should be judged at the time they were made in light of all facts and
circumstances. Strickland, 466 U.S. at 690; see Cooper 849 S.W.2d at 746.

       If afforded a post-conviction evidentiary hearing by the trial court, a petitioner must do more
than merely present evidence tending to show incompetent representation and prejudice; he or she
must prove factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f).
When an evidentiary hearing is held, findings of fact made by that court are conclusive and binding


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on this Court unless the evidence preponderates against them. Cooper, 849 S.W.2d at 746 (citing
Butler, 789 S.W.2d at 899).

        Based on our review of the record, we conclude that the Defendant has failed to meet his
burden of establishing that his counsel was ineffective. While he asserts that his counsel was
ineffective for failing to procure the victim’s medical records, he has not established what the
medical records would show. Moreover, he has not established how the medical records would have
changed the outcome of the trial. According to our prior opinion in this case, the victim testified that
he had been receiving medication at the Jackson Mental Health Center for the past twenty years. See
Aaron Benard Gray, 1998 WL 211791, at *4. Thus, the jury knew that the victim had some type of
mental condition. In addition, the jury was able to see the victim testify and accordingly evaluate
his mental state. We cannot say that more evidence of the victim’s mental condition would more
probably than not have caused the jury to have reasonable doubt regarding the Defendant’s guilt.

        Like the trial court, we believe that the Defendant has failed to present any evidence showing
that his counsel’s performance was below the standard of competence for attorneys. He has not
proved, by clear and convincing evidence, that anything his attorney did or failed to do would have
changed the outcome of the trial. Accordingly, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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