         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE         FILED
                            OCTOBER 1993 SESSION
                                                           July 5, 1996
STATE OF TENNESSEE,                )      No. 01C01-9306-CC-00190
                                   )                 Cecil W. Crowson
                     Appellee,     )               Appellate Court Clerk
                                          Maury County
                                   )
v.                                 )       Hon. James L. Weatherford
                                   )
BOBBY LOVE,                        )       (Aggravated Assault)
                                   )
                     Appellant.    )

For the Appellant:                        For the Appellee:

Jerry C. Colley                          Charles W. Burson
Attorney at Law                          Attorney General & Reporter
Post Office Box 1476
Columbia, Tennessee 38402-1476           John B. Nisbet, III
(Appeal Only)                            Assistant Attorney General
                                         Criminal Justice Division
Gary Howell                              450 James Robertson Parkway
Attorney at Law                          Nashville, Tennessee 37243-0493
710 North Main Street
Post Office Box 442                      T. Michael Bottoms
Columbia, Tennessee 38402                District Attorney General
(Trial Only)
                                          Robert C. Sanders
                                          Kymberly Hattaway
                                          Assistant District Attorneys General
                                          Post Office Box 1619
                                          Columbia, Tennessee 384021619




OPINION FILED: ______________________

REVERSED & REMANDED

C. Creed McGinley
Special Judge
                                    OPINION

       Appellant, Bobby Love, was convicted in Maury County Circuit Court of

the crime of aggravated assault, a Class C felony, by a jury. The trial court

found that appellant was a standard offender and imposed a Range I sentence

of confinement for six years in the Department of Correction and ordered

restitution to the victim.

       Appellant presents two issues for review. He contends that:

    1. The trial court erred in overruling his motion for new trial

    based on the grounds of newly discovered evidence.

    2. The trial court erred in overruling his motion for new trial

    based on the grounds of ineffective assistance of counsel.

       After a careful review of all records, we reject the appellant’s first issue

that he is entitled to a new trial on the grounds of newly discovered evidence.

However, this court holds that ineffective assistance of counsel denied

appellant his constitutional right to a fair trial. Appellant’s conviction must be

reversed and the case remanded for a new trial.

                                      Facts

       Bobby Love is charged with aggravated assault resulting from an

incident which occurred at Partner’s Lounge in Columbia, Tennessee, on June

19, 1989. The prosecuting witness, John Marks, claims that the defendant

approached him inside the bar and asked if he wanted to fight. Marks claims

that he had no reason to fight the defendant.          He also claims that the

defendant then followed him outside to the parking lot and cut him with a knife.

Marks states that at this point he pulled a knife and the defendant returned to

the bar. Marks further states that several patrons of the bar came outside to

restrain him from reentering the bar with a hatchet. The police were called to

the scene to investigate the incident and the arrest of Bobby Love followed.



       The defendant’s testimony contradicts that of John Marks.              The

defendant, Bobby Love, testifies that Marks approached him inside the bar and

wanted to fight. He testifies that he left the bar and a fight ensued in the

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parking lot. The defendant alleges that Marks pulled a knife and attacked him

first. He claims that he pulled his knife in order to defend himself.

         During the course of the trial, the state called three witnesses. These

included: John Marks, Officer Lonnie Lyles of the Columbia Police Department,

and Sgt. Jay Hooks of the Columbia Police Department. The defense called

three witnesses as well. These included: Steve Morton, a witness to the

altercation, Bobby Love, the defendant, and Officer Lonnie Lyles of the

Columbia Police Department. A jury in Maury County Circuit Court found

Bobby Love guilty of aggravated assault.

                                    Discussion

                            A. Newly Found Evidence

         One basis of appellant’s appeal is the existence of newly found

evidence.     Appellant submits that after his conviction, his trial attorney

inadvertently found out about a new witness. This witness was an impartial

observer of the altercation who would corroborate the testimony of the

defendant. In order to warrant a new trial based upon newly discovered

evidence several requirements must be satisfied. In Jones v. State, 2 Tenn.

Crim. App. 160, 165, 452, S.W.2d 365, 367 (1970), the Court of Criminal

Appeals of Tennessee found:

     An accused seeking a new trial on the ground of newly
     discovered evidence must file an affidavit setting forth facts
     showing that he and his counsel exercised reasonable diligence
     and were not negligent in the search for evidence in preparation
     for the trial of the case, that he and his counsel had no pre-trial
     knowledge of the alleged newly discovered evidence, and it
     must be supported by the affidavit of the new witness showing
     the materiality of the testimony and that it had not been
     communicated to the accused prior to the trial.


Furthermore, the Tennessee Supreme Court ruled in Clarke v. State, 218

Tenn. 259, 278, 402 S.W.2d 863 (1966), that evidence which was cumulative



or which attempted to impeach a witness did not entitle a defendant to a new

trial.

         It is the job of this court to determine whether (A) the defendant and his

counsel exercised reasonable diligence and were not negligent in the search


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for evidence and (B) whether the new evidence is cumulative or attempts to

impeach a witness.

       Reasonable diligence is defined as a fair, proper, and due degree of

care and activity, measured with reference to the particular circumstances.

BLACK’S LAW DICTIONARY 412 (5th ed. 1979). It is the opinion of this court

that reasonable diligence was not exercised.           The defendant makes no

mention of his attempt to locate and question this new witness. Further, the

attorney for the defendant never attempted to locate other patrons of the bar

who might have witnessed the altercation. Therefore, we see no degree of

reasonable diligence.

       This court finds that the newly discovered evidence in this case does not

warrant a new trial, due to the lack of due diligence by the defendant and

counsel.

                      B. Ineffective Assistance of Counsel

       Appellant submits that the ineffectiveness of his trial counsel deprived

him of his constitutional right to a fair trial. In order to award a new trial on this

basis, it is the responsibility of the appellant to show that his attorney was

ineffective. The standards for ineffectiveness of counsel in Tennessee are set

forth in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). This standard requires

that the advice given or services rendered by the attorney be within the range

of competence demanded of attorneys in criminal cases. The United States

Supreme Court has further clarified the ineffective counsel issue in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).

The Supreme Court, in this case, set forth a two-prong test for ineffective

counsel. First, the defendant must show that the counsel’s performance was

deficient. Second, the defendant must show that the deficient performance

prejudiced the defense.       This includes showing that counsel’s deficient

performance deprived the defendant of a fair trial.

       The trial court in this case found “that retained trial counsel was

competent, effective and exercised due diligence under the circumstances in

the preparation and conduct of the trial.” The findings of fact are conclusive on

appeal unless the evidence preponderates against the judgment. Butler v.

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State, 789 S.W. 2d, 898 (Tenn. 1990). A review of the record in this case

convinces this court that the proof preponderates against the finding by the trial

court that the defendant had effective assistance of counsel.

         On the first issue this court finds that the defendant has proven that the

performance of his trial counsel was deficient. Secondly, it is the opinion of

this court that the deficiency of counsel prejudiced the defense. A number of

prejudicial deficiencies of defense counsel can be ascertained from the

records.

    A.     Absence of defendant at Preliminary Hearing - The

    defendant asserts and defense counsel admits that the

    defendant was not correctly notified of the date of his

    preliminary hearing. Defense counsel further concedes that he

    told his client the wrong day of the hearing, and he continued

    with the hearing despite the absence of his client. While this in

    itself is not conclusive, it is the first in a line of deficiencies.

    B. Absence of an effective defense strategy - The affidavits of

    the defendant, defense attorney, and Tommy Tucker, as well as

    the record itself, indicate that defense counsel was deficient in

    his preparation for the trial. The defendant alleges that he gave

    his attorney the names and addresses or places of work of three

    witnesses to the alleged assault.           These witnesses were

    impartial observers to the incident who could corroborate the

    story of the defendant. Of these three witnesses, only one

    appeared and testified at trial. The witness who did testify,

    Steve Morton, was found by the defendant’s wife and brought to

    court by her on the day of trial. Counsel for the defense did not

    talk to any of these witnesses before trial, did not issue

    subpoenas, and did not insure that the witnesses would be

    present for trial. Tommy Tucker, one of the uncalled witnesses,

    states in his affidavit that Bobby Love acted in self defense.

    The trial attorney, in his testimony during the hearing for a new

    trial was questioned about the uncalled witnesses. When asked

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    whether the credibility of the testimony of these witnesses would

    have been such that it could have changed the outcome of the

    trial, the trial attorney answered: “From my experience, yes . . .It

    would have given you the opportunity to argue to the jury that

    these people don’t have a horse in the race, and that therefore

    there’s no reason to doubt what they’re saying.”

       It is the opinion of this court that the performance of defense counsel

was deficient and that this deficiency directly prejudiced the defense, as set

forth in Strickland v, Washington, supra. It is the opinion of this court that there

is a reasonable probability that, but for counsel’s deficient representation, the

verdict in this case would have been different.             Therefore, counsel’s

ineffectiveness deprived the appellant of a fair trial.

       Bobby Love’s conviction is reversed. The case is remanded to the trial

court for a new trial.



                                             ____________________________
                                              C. Creed McGinley, Special Judge

CONCUR:




___________________________
John H. Peay, Judge


___________________________
Joseph M. Tipton, Judge




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