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

               JAMES E. TAYLOR, JR. v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Sumner County
                           No. 755-2002    Jane Wheatcraft, Judge



                    No. M2003-01923-CCA-R3-CD - Filed February 4, 2004


The Defendant, James E. Taylor, petitioned for post-conviction relief from his convictions of
aggravated assault, aggravated burglary, and aggravated kidnapping. He alleged that he received
ineffective assistance of counsel. After a 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.

Roger Swindle, Hendersonville, Tennessee, for the appellant, James E. Taylor, Jr.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Byrna Grant, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        Upon his jury trial, the Defendant was convicted of one count of aggravated assault, one
count of aggravated burglary, and one count of aggravated kidnapping. These offenses were
committed during the Defendant’s attack on his estranged wife. He received an effective sentence
of seventeen years of incarceration for these offenses. His convictions and sentences were affirmed
on direct appeal. See State v. James Elbert Taylor, Jr., No. M2000-01802-CCA-R3-CD, 2001 WL
1028814 (Tenn. Crim. App., Nashville, Sept. 7, 2001). The Defendant subsequently filed for post-
conviction relief, which the trial court denied after a hearing. The Defendant now appeals,
contending that the trial court erred in failing to find that he suffered from ineffective assistance of
counsel at trial. Specifically, the Defendant contends in this appeal that “his trial counsel’s failure
to make an offer of proof as to the victim’s conduct as to former boyfriends and the failure to
properly advise the Defendant as to his right to testify in his own defense created a deficiency in
representation” that accrued to the Defendant’s prejudice.
         At the hearing on his petition, counsel for the Defendant called attorney Randy Lucas, who
represented the Defendant at trial. The Defendant’s post-conviction counsel asked Mr. Lucas about
“getting in testimony about the victim’s conduct in bringing charges against former companions.”
Mr. Lucas explained that the Defendant had given him the first name of one of the victim’s former
companions, who was located in Missouri. The Defendant gave him no other information, and the
victim refused to speak with him. During cross-examination of the victim, Mr. Lucas attempted to
question the victim regarding her past conduct with ex-boyfriends. However, the State objected and,
after a “fairly lengthy sidebar,” the trial court sustained the State’s objection. The Defendant now
contends that Mr. Lucas should have made an offer of proof and should have more aggressively
pursued this line of questioning under Tennessee Rules of Evidence 404 and 405.

         With respect to Mr. Lucas’ discussions with the Defendant regarding the Defendant’s right
to testify, Mr. Lucas testified that he and the Defendant discussed that issue “extensively on several
separate occasions.” Mr. Lucas stated that the Defendant was “fully informed” about the
ramifications of testifying or not, and that he had “no doubt” that the Defendant was adequately
prepared in order to make the decision about testifying.

         The Defendant also testified at the post-conviction hearing. He contended that he “didn’t
know how important it would be . . . to get on the stand to speak on [his own] behalf. If [he] knew
the outcome was going to be like it was, [he] would have got on the stand . . . .” With respect to the
trial court’s having ruled that he would be subject to impeachment on the basis of a prior conviction,
the Defendant stated that he understood that “[i]n some ways,” but not in others. With respect to the
trial court’s evidentiary rulings, the Defendant testified that Mr. Lucas “let go a little too soon.”

       The trial court denied the Defendant’s petition, finding that he “was very well represented
by Mr. Lucas.”

         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).


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        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.

          In this case, we agree with the trial court that the Defendant failed to carry his burden of
proving that his trial lawyer was either deficient in his performance, or that any deficiency accrued
to the Defendant’s prejudice. With respect to the Defendant’s contention that Mr. Lucas failed to
adequately explore the victim’s past, there is nothing in the record before us to demonstrate what that
past consists of, and how it would have helped the Defendant had it been successfully brought out
at trial. Accordingly, the Defendant has failed to establish any prejudice with respect to Mr. Lucas’
alleged deficiency on this particular matter. With respect to the Defendant’s contention that Mr.
Lucas did not adequately inform him concerning his right to testify, the trial court made an implied
finding that Mr. Lucas’ credibility overcame the Defendant’s on this issue. There is nothing in the
record to convince us that the trial court erred in making this particular finding of fact. In short, the
Defendant’s contentions are without merit.

        The Defendant having failed to establish that he suffered from the ineffective assistance of
counsel at trial, we affirm the judgment of the trial court dismissing his petition for post-conviction
relief.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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