### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 28, 200 5

JOSEP H B. THOM PS ON v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Sulli van Coun ty

No. C48,041 R. Je rry Be ck, Judge

No. E2004-00920-CC A-R3- P C - F iled October 12, 2005

The Petitioner, Joseph B. Thompso n , wa s convicted of ag g ravated robbe ry

and ag g ravated kidnapping , and the tria l court sent en ce d h i m t o an ef fec tive sentenc e of f

orty y ear s. On direc t appea l, this C ourt aff

irmed t he P etitioner’s convictions and sentenc es. The Petitioner f iled a petition for post-c onviction relief, w hich t he post -convic tion court dism issed afte r a hearing. On appe al, the Petitioner contends that the post-conviction court err ed when it dism issed his petition because: ( 1) he re ceive d ineffe ctive assistanc e of c ounsel; (2) the State c aused exculpatory evidenc e to be lost and unavailable to the Petitioner; (3) the trial c o u rt d en i ed his rig ht to allocution; (4) the trial court improperly

limit ed trial c ounsel’s time for closing arg ument; ( 5) the trial court err ed when it ruled that the Petitioner could not instruct his trial counsel about trial strateg y ; and (6) the trial court e rre d by instructing the jury

conce rning the amount of fine s to be imposed. After thoroug hly

revie wing the re c or d a ndthe app lic able la w, we a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of t he court, in which J A M ES C UR WO OD W I TT , J R ., and A L AN E. G L EN N , J J ., joined.

Mark H. T oohey , King sport, Tenne ssee, f or the a ppellant, J oseph B . Thompson.

Paul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Jenn if e r L . B le ds oe , A ssi stant A tto rn e y Ge ne ra l; Gr e e le y Wel ls, Di stric t Atto rn e y Ge ne ra l; an d B. To ddMa rt in, As sis ta nt D ist

ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

I. F acts

A Sullivan Count y

J u ry co n v i cted the Petitioner of ag g ravated robbe ry

and of a g g ravated kidnapping

. The trial c ourt sentenc ed the Petitioner to twenty y ear s for e ach of

fense , to be serve d

consec utively , for a n eff

ective se ntence of forty

y ear s. On direc t appea l, this C ourt aff irmed the-2-

Petitioner’s convictions and se ntence . State v. J oseph B. Thompson, N o. E2002-00061-CCA-R3- CD, 2003 WL

1202979, at *1 (Tenn. Crim. App., at Knoxvi lle, Mar. 17, 2003), perm. app. de nied (T e nn . 2 00 3) . In o ur

op ini on , w e su mma

ri zedthe fa c ts a s f

oll ow s:

Du ri ng the e arl y

mornin g ho ur s o f Jun e 20 , 1 99 9, the sixty -t wo -y ear -o ld victim, Shi rley

Huffma n, a des k cl erk at the Microtel motel in King sport, was attacke d and beaten by a man wea ring a ski mask. The vic tim, who suffere d injuries to h e r h e a d an d face, fe lt the se ns a tio n o f b e ing dr a g g e d b e fo re sh e los t consciousness. When she briefly reg ained consciousness, she rea liz ed that she wa s in the restroom a djace nt to the manag er’ s office

.
Rob i n L y nette B lix , also a de sk clerk at the motel, testified that the [P etitioner], whom she rec og nized as an ac quaintance of her ex-boy friend, e ntere d the lob by of the mot e l th ro ug h th e fr on t do or jus t be fo re mid nig ht. Ac c or din g to M s. Blix, t h e [ Petitioner] l eft the lobby befor e the victim, who beg an her shift at midnight, ar

rived for work. She rec alled that the victim had locked a ll of the motel’s exterior doors shortly afte r her arrival. Ms. Blix reme mbere d that the [P etitioner] had been a g uest at the Microtel sever al day s earlier, but w as not reg istered on the nig ht

o f t h e r o b b e r y.

Alicia He ndrickson, g ener al manag er o f th eM ic r o te l, e xp la

in e d th at ke y car ds issued to gue sts were prog rammed to ope n both the individual g uest rooms and the exterior doors. She explained that eac h key car d could be used until a new ke y was
cr ea t ed wi t h t h e sa m e ro o m n u m b er

. M s

. He n d ri ck s o n , wh o at t en d ed t h e sa m e h i gh school as the [Petiti oner], rec alled that he w as a g u es t at t he motel from June 5 throug h J une 12, and still owed more than $200 for his lodg ing. She te stified that when the [Petitioner] checke d into the motel on June 5, he paid for one day and made

arr a ng e me nts to p a y

fo r the ba la nc e of his stay wh e n he re c e ive d his pa y c he c k. Ms. Hendrickson explained that she had made a simil ar arr ang ement with the [Petit ioner]

on an earlier occa sion a nd that he had paid the full balanc e. Af ter be ing notifie d of the ro bb e ry , Ms. He nd ri c ks on we nt to the mot e l and g a ve the [Pet iti on e r’ s] nam e to po lic e ba se d u po n th e de sc ri pti on of the pe rp e tr a tor

pr ov ide d by

oth e r w itn e sse s. Ms. H e n d r i c k s o n t e s t i f

i e d t h a tm o r e t h a n $ 4 0 0 w a s m i s s i n g a f t e r t h e r o b b e r y.
Robert Way ne Hug hes, who was training a s a re serve deputy for the Sullivan Cou nty She ri ff ’s De pa

rt me nt at th e tim e of

the of fe ns e s, te sti fi e d t hat he and his g irlfriend, S u z an ne F ay e L awson, a rrived in se parate ca

rs at the Micr otel betwee n 1:00 and 1:30 a.m. As Hug hes drove closer t o t h e en t ranc e of the motel, he saw a masked blac k male, who wa s wea ring dark brown clothing , lurking in a hallway near the lobby . Acc ording to Hug hes, the individual r etre ated into the hallway afte r see ing him outsi de. Hug hes then dire cted Ms. L awson to follow him to an adjace nt parking lot so that they

could not be see n fr o m t h e l obby . After war d, Hug hes drove back tow ardthe lob by

a ndwa lke d to the c a ll b ox to s umm on a n a tte nd a nt. Af te r the vic tim-3-

a llo we d h im i nto the lob by , H ug he s c he c ke d th e ha llw a y ne ar the lob by

to s e e if any one was there . He state d that when he informed the vic tim that he had see n a man lurking near

the lobby , she did not seem conc erned
, ap p arently believing that the ind ivi du a l w a s a

re g ist e re d g ue st.

Suz anne F ay e L awson, Hug hes’ g irlfriend, testified that she observed an individual, whom she later identifie d as t h e [Petit ioner], drive a c ar f rom the re ar parking lot of the motel, park, and then walk toward her vehicle. M s. L awson stated that she saw the [P etitioner’ s ] fa ce as he wa lked within ten fee t of her c ar. She described the [Petit ioner] as wea ring dark g ray

clothing and havin g b l ac k hair, a medium complexi on, and a slim build. L ater , she saw the [P etitioner] enter a back door of the motel. Ms. L awson re membere d that when she informed Hug hes that she had see n the [P etitioner] enter throug h the bac k door, Hug hes chec ked the f loors and then ca lled the front de sk to tel l t h e cle rk of the [Petitioner’s] presenc e. Af ter the robbery , Ms. L awson identified the [P etitioner] from a photog raphic lineup as the ind ivi du a l sh e ha d s e e n e nte r the mot e l.

J ames Alexander Ba

rdinelli and J oel Ding us, employ ees of a Krog er loc ated

a dja c e nt t o th e Mic ro te l, w e re stand ing ou tsi de the ir pla c e of bu sin e ss s ome tim e betwee n 2:00 and 2: 15 a.m. They wer e approac hed by the [P etitioner], who offer ed to s e ll the m so me sp ortin g tic ke ts. B ard ine lli
, wh o id e nti fi e d th e [Pet iti on e r] f ro m a photogr aphic lineup, r eca lled that he and his br other had seen the [P etitioner] the day befor e. Di n gu s s aw the [P etitioner] drive into the parking lot of the Microtel a nd enter throug h a bac k door.

At 2:39 a.m., Serg eant Dan Br ookshire and O ffi ce r M ar k Osterman of the King sport Police Depa

rtment responde d to the silent alarm at the Mic rotel. Upon the ir arriva l, the fr on t do or

wa s lo c ke d a ndthe re was no c le rk loc a te d inthe de sk

are a. Af ter someone inside opened the door, Off icer Osterman e x amined the f ront d es k area while Ser g eant B rookshire stay ed in the lobby . Serg eant B rookshire observe d a scr ewdriver stuck in the door jamb of t he restroom located adjace nt to the front desk. O ffice r Osterman, who had se en a la rg e amount of blood on the f loor behind the front desk and on the restroom door, wa s unable to open the restroom door beca use the scr ewdriver had been lodge d betwee n the door a nd the frame. When the

scre wdri ver w as re moved, the off icer s discovere d that the door wa s locked. Af ter g a ini ng e ntry

by the us e of

a kn if e , o ff ic e rs dis c ov e re d th e vic tim , w ho wa s b a dly injured and lying in a

pool of blood.

Detec tive Penny

Kindle of the Kingsport Poli ce D epartment testified that she interviewe d the victim at Wellmont Hos pital on the day following the crimes. She took se vera l photog raphs which depicted the various injuries the victim had suffe red during the attac k. After

the [P etitioner’s] arre st, Detec tive Kindle noticed that [P etitioner’s] rig ht hand was swollen.-4- Ma ry Kay Arno ld, wh o wa s dat ing the [Pet iti on e r] at th e tim e of the of fe ns e s, testified t hat t he [ Petitioner] was at her re sidence until 10:00 p.m . on the day befor e the robbe ry . She rec alled that he w as wea ring blue jeans and a re d tee shirt whe n he left. Ac cording t o M s

. Arnold, the [Petiti oner] returne d shortly afte r 3:00 a.m. the following morning . Awake ned by the sound of running water in her kitchen sink, she walk e d d o w n s tair s a n d h e ar d th e [P e ti ti o n e r ] s a y , “ D o n o t c o me in to th e k it c h e n.” Acc ording to Ms. Arnold, the [P etitioner] was wea ring the same c lothing he ha d on

earlier in the eve ning. She notice d that his rig ht hand was swollen. She testified that the [P etitioner] then left the re sidence and, whe n he re turned shortly afte r sunrise, he

was we aring a y ellow shirt, y ellow hat, and blue j eans and was c arry ing a Proffitt’s bag . The [Petiti oner] handed he r a pair of brow n suede boots and asked her to discard them. Acc ordi n g t o M s

. Ar n old, the boots had dark r ed or br own stains on the toe

are a. She re called that the [P etitioner] asked her to drive to the L aundromat, where he du mpe d clothin g fr om a bla c k p la sti c ba g int o a

wa sh ing ma c hin e . M s. Arno ld testified that she did not see the clothing that had bee n in the bag and conc eded that she had origina lly

lied to the police re g arding the [P etitioner’s] where abouts on the night of the offe nses. She explained that she “w as scared because [ she] had thrown

away some boots and my

friend told me that he might have been the one.”

Of fi c e r D a vidQu ill e n te sti fi e d th a t th e [Pet iti on e r] a sk e d to sp e ak w ith him

on the da y

a ft e r the ro bb e ry . A c c or din g to Of fi c e r Qu ill e n, the [Pet iti on e r] i nit ia lly denied a ny

involvement, claiming that he had been living i n his car and wa s asleep at the time. Eventua lly , the [P etitioner] acknowledg ed tha t h e h ad bee n at the Mic ro te l prior

to the ro bb e ry . Wh e n O ff ic e r Q uil le n n oti c e d th a t th e [Pet ition e r’ s] rig ht hand was ba dly swollen, the [ Petitioner] ex plained that he ha d hit someone but

re fu se d to ide nti fy

the ind ivi du a l. T he off

ice r state d th a t th e [Pet iti on e r] at f ir st denied c ommitt ing the robbery but later qua lified his claim, pointing ou t t hat “no person sa w [him ] commi t any crime.”

Dr

. Joan n D’ Ap ri le Luk e s, wh o tr e a te d the vic tim , te sti fi e d th a t th e re wa s a three -ce ntimeter lac eration on the victim’s lef t e y ebrow , a five -ce ntimeter lac eration on her le ft ea

r, a one -ce ntimeter sca lp lacer ation, and a one-c entimeter la cer ation on her le ft middle fing er. She de scribed the victim as having extensive swelling on the rig ht side of her f

ace . Her rig ht ey e wa s swollen shut, her lips were swollen, and he r entire f acia l are a wa s black a nd blue.

Dr . T imo thy

A. Ur bin
, a ne ur op sy c ho log ist
, ob se rv e d se ve re inj urie s to bo th sides of t he front part of the vi ctim’s brain and lesser injuries to the right side of the back part o f her

brain. He diag nosed the victim with a conc ussion and Post-Traumatic Stress Disorde r. It w as his opinion that the victim would e x perie nce difficulties with her thoug ht proce sses for the rema inder of he r life.

The victim, s ixty -five- y ear -old Shirley Huffma n, rec alled that just prior to the-5-

a tta c k, a g ue st w arn e d h e r that he ha d s e e n a ma n lu rking in the lob by . A s a re su lt, she re moved $200 from the c ash dra we r b eh i n d the front de sk and plac ed it in the safe . L ater , just after the same g uest telephoned the front desk to te ll he r that he had

seen someone on the sec ond floor of the motel, a li g ht-skinned bl ack ma le appe are d in the lob by , ju mpe d o ve r the c ou nte r, a nd began to beat he r w ith his ri g ht f ist
, eventua lly

threatening to shoot her. The vic tim testi fied that she strugg led to rea ch the a larm bu tto n b ut w a s n ot s ur e if it wa s a c tiv a te d b e c aus e sh e e ve ntu a lly los t consciousness. She rec alled that when she reg ained consciousness, she rea liz ed that she wa s on the floor of the restroom and was able to lock t he door from the insi de. Th e vic tim

wa s u na ble to i de nti fy

the de fe nd a nt’ s f

a c e be c a us e he wo re a

ski ma sk during the attac k, but otherwise de scribed him as only slightly taller than he r.

Ka re n N . L a nnin g, an a g e nt w iththe F B I , te sti fi e d f or the de fe ns e . M s. L anning , an expert in the field of fiber and hair a naly sis, stated that she had e x amined a number of hairs c ollected f

rom inside the [ Petitioner’s] vehicle and determined that

no ne of th em bel on g e d to the vic tim . Sh e a lso e xami ne d h a ir s f ou ndon the vic tim

an d c o n c lu d e d th a t th e y

w e r e n o t th o s e o f

th e [P e ti ti o n e r ]. M s

. L a n n in g s tate d that if the pe rp e tr a tor

we re we ari ng a

ma sk , g lov e s, a

lon g -s le e ve sh irt, p a nts , an d b oo ts, she would not expect to find his hair at the c rime sce ne.

Three fore nsic scientists w ith the T BI testified for the defe nse. Hoyt Phil lips testified that he c ompare d two latent fing erprints and o n e p al m print found at the

scene with the known prints of the [P etitioner] a nd determined that the prints found at the sce ne we re not those of the [ Petitioner]. J oe Mi nor testified that he examined the ac cele rator pe dal and br ake pe dal from the [Petitioner’s] car a nd conclude d that there was no blood on either . He a lso foun d n o b l o o d on the floor mats fr om the [P etitioner’s] car . Min o r s tated that no blood was f ound on the six pairs of the [Pet iti on e r’ s] sh oe s th a t w e re te ste d. L ind a L itt lejo hn c omp are d th e [Pet iti on e r’ s] shoes with impressions left at the s cene and determined t hat none of t he shoes teste d matched the impression.

I d. at *1-4.

As previously

stated, the Petitioner conte nds, among other t h in g s , th at he rec eived inef fec tive assistance of co u n s el

. He as serts that his trial counsel wa s ineffe ctive in ninetee n way s, and he offe red te stimony in support of eac h of these claims at the post-conviction hearing. Be cause of our sta nd ardof

re vie w, we mus t e xami ne a ll the pr oo f pr e se nte d th a t is re le va nt t o th e Pe tit ion e r’ s c la ims in this appeal. To that end, the following rele vant evidenc e wa s prese nted at the post-conviction h ea ri n g:

J ames Moff

itt, a detective w ith the Kingsport Poli ce D epartment, testified that, on J une 21, 1999, he arr ested the Petitioner at an apartment loc ated in a g overnme nt housing a partment c omplex in J ohnson City , Tenne ssee. A Johnson City police officer transporte d the Petitioner to the J ohnson-6-

Citylimit s, near

King sport, and, in King sport, a King sport police off icer t o o kcustody

of the Petitioner. The detec tive said that the Petitioner’s 1978 Chevrolet Capric e wa s leg ally parke d in the parking lot of the apa

rtment complex, and the ca r wa s confiscated and towed to the King sport Police De pa rt me nt. De te c tiv e Mo ff

itt did no t ha ve a

se arc h w arr a nt f

or the ve hic le , a ndhe a ssu me d th a t, afte r the ve hicle wa s t ak en to Kingsport, a sea rch w arr ant was issued be fore the vehicle was
sear ched. On cross-e x amination, Detec tive Moffitt testified that the apa rtment belong ed to someone other than the Petitioner, namely a woman named Kathy

Pierce . He discov ere d the apa rtment’s addre ss by

looking throug h phone rec ords at the Micr otel I nn, which showe d that phone ca lls had been ma de to the apartment from a room reg istered to the P etitioner. Detec tive Moffitt testified that he had a description of the Petiti oner’ s vehicle, w hich is how he identified the vehicle in the apartment parking lot.

F rank L ig ht, a de te c tiv e wi th the Ki ng sp ort Po lic e De pa rt me nt, ide nti fi e d a Sul liv a n Co un ty

se arc h wa rr a nt fo r the Pe tit ion e r’ s ve hic le

. De te c tiv e L ig ht te sti fi e d th a t D e te c tiv e Da vidJoe C ole told him t hat he ha d a valid ar rest wa rr an t fo r t h e Petitioner, and De tective Light we nt to Kathy Pierce ’s apa

rtment to arr est the Petitioner. He sa id that he went to the a partment c omplex with other de te c tiv e s a ndta lke d w ithPie rc e , w ho inf orme d h im that th e Pe tit ion e r w a s n ot at th e apa rt me nt. De t ec t i v e Ligh tt es t i fi ed t h at , wh en h e w as re t u rn i n g t o t h e p o l i ce d e p a r t m en t , h e r ec ei v ed a p age from Pierc e informing him that the Petitioner was at her apartment. The detec tive said that the other detec tives returne d to the residenc e looking for the Petitioner’ s vehicle. When the de tective r eturne d to the residenc e, he knoc ked on the door , and Pierc e answ ere d, and she a llowed the police inside the apartment. Detec tive L ight th en ar re sted the Petitioner. On cr oss-examination, Detective Light testified that Dete ctive Cole informe d him that there wa s an ar rest wa rra nt for the Petitioner. Detec tive Cole also advised him that the Petitioner might be driving a 197 8 C ap ri ce, and, befor e seeing the vehicle at the apa rtment, Dete ctive Light did not request a search warr ant for the vehicle. Detec tive L ight testified that the Petitioner wa s arr ested in Johns on City , and Johnson C ity police transporte d the Petitioner to the Sulli van County line. The Petitioner was then taken to the King sport CityJ ail. He state d that the Petitioner’s vehic le was towe d to Sull ivan County , and it was taken a s
e vid e nc e to the Ki ng sp ort Po lic e De pa rt me nt.

Detec tive Cole testified that, as part of t his investigation, he recove red a Montgome ry Ward

re c e ipt wh e n h e se arc he d the Pe tit ion e r’ s ve hic le

. He sa id that w he n h e fi rs t sa w the re c e ipt it d id not mean anything to him, an d h e p u t it in a box labeled “ various pape rs.” De tective Cole stated that, sub se qu e ntl y , the vic tim tol d him ab ou t a sec on d Mon tg ome ry War d re c e ipt fo un d at the c ri me
scene . The de t ective identified the scr ewdriver that wa s found in the door of the bathroom at the Mic ro te l. He sa id that he ac c omp a nie d pos t- c on vic tio n co un se l andCha rl e s Co ome r t o th e ho te l to vie w the bathr oo m door a nd to ru n a te st o n th e do or . Wh e n h e e xami ne d th e do or , it app e are d to be unchang ed fr om the night of the r o b b er y . Detec tive Cole testified that he found a mark on the do or jus t a bo ve the hin g e wh e re the sc re wd ri ve r h a d b e e n p la c e d d uring thi s c ri me . D e te c tiv e Col e said th at , afte r dete rmining w here the mark w as located, he a ssisted post-conviction counsel by lodging t h e s cr ewdriver in that same a rea of the door. Coomer

then opene d the door without difficulty
, and the scre wdriver fell on the floor. On c ross-examination, Detec tive Cole testified that he didno t kn ow if

the sc re wd ri ve r f

ou nda t th e sc e ne be lon g e d to the ho te l, an d the re we re no too ls-7-

stored nea

r the a rea wher e the scre wdriver was found. B ased on his investig ation, the scre wdriver appea red to be place d in the door to ke ep the door closed, but he thoug ht that the victim locked the door fr om the inside.

B othsid e s st ipu la te d that Cha rl e s Coo me r, a re sid e nt of

Ki ng sp ort, w e nt t o th e Mic ro te l w ith post-conviction counse l and Dete ctive Cole, and he witnessed De tective Cole plac e the sc rew driver in the doorjamb. After the s cre wdriver was placed in the door in two differ ent positions, C oomer
o p e n e d t h e d o o r

w i t h o u td i f

f i c u l t y.

Dan B rookshire, a n office r with the King sport Police Depa rtment, testified that he re sponded to the robbery

at the Mi crote l, and, when he g ained e ntranc e to the hotel, he f ound the cler

k in the bathroom and a

scre wdriver

lodge d into the t op of t he left side of the door ne ar the hinge . He state d that the door was locked from the inside, and he was unable to open the door by turning the handle. The officer did not know whether t he screwdriver prevented the door fr om opening , and he thoug ht that Detec tive Moffitt g ained a cce ss to the door by using e ither a screw driver or a knife to open the latch of the door.

Mark Edwar d Osterman, an office r with the King sport Police Depa rtment, testified that he responde d to an alarm at t he Microte l, and, when he arrived, he notice d a scr ewdriver stuck in the doorjamb nea

r the hing e at the top lef

t side of the bathr oom door. He sa id that the door wa s locked when he arrived. The officer did not know who remove d the s cre wdriver
, he did not rec all seeing the do or op e n, he didno t r e me mbe r e xac tly wh e n th e sc re wd ri ve r c a me ou t of the do or , a ndhe did not know if the scr ewdriver in the door pr evente d the door fr om being opened.

Th e Pe tit ion e r t e sti fi e d th a t he ini tia lly fi le d a pr o s e pe tit ionfo r p os t- c on vic tio n r e lie f i n which he a lleg ed that his trial counse l, (“Counsel”) , was inef fect i v e for se vera l rea sons. The Petitioner asserte d that Counsel was ineff ective f or fa iling to file sever al pre- trial motions, and for failing to reque st a cha ng e of ve nue base d upon pretria l publicity

. The Petitioner informed Counsel

o f p r e tr i a l p u b l i c i t y t h a tt h e P e t i t i o n e r b e l i e v e d w a s f

a l s e a n d p r e

j u d i c i a l t o h i s tr i a l

. A d d i t i o n a l l y, the Petitioner stated that Counsel was ineffe ctive for failing to file a motion for individual voir dire

o f t h e j u r y b e f

o r e tr i a l t o d e t e r m i n e i f t h e y h a d s e e n o r r e a d a n y o f

t h e p r e j u d i c i a l p r e tr i a l p u b l i c i t y. Al so , b ased upo n th is p ub lic ity , th e Pe tit ion e r s ta te d th a t Co un se l sh ou ld h a ve fi le d a mot ionto dismiss the indictment and should have asked the t ri al co u rt to inquire if the g rand jury was influence d by

the newspa

per a rticle. He stated that he discussed this issue with Counsel on

numerous occ asions, both in person and by letters.

Th e Pe tit ion e r t e sti fi e d th a t Co un se l w a s in e ff e c tiv e fo r f

a ili ng to f ile a mot ionto s up pr e ss evidenc e base d on his ill eg al ar rest. He clarified that Counsel ine ffe ctively failed to inve stigate the fac t that his arre st was illeg al. The Petitioner a lleg ed that his arr est was illeg al because it occ urre d at an a partment owne d by

someone other than t he Petitioner, and, w hen the owne r aske d the police of fi c e rs if the y ha d a wa rr a nt, the of

fi c e rs we re ob lig a te d to g e t a se arc h warra nt. He sa id that, ins te a d, t h e o f

f i c e r s e n t e r e d t h e h o m e , arr e s t e d h i m , a n d t o o k h i s c ar k e y s , s h o e s , a n d o t h e r ite ms fr om h im. Th e Pe tit ion e r t e sti fi e d th a t th e of fi c e rs wr on g fu lly

too k h im t o th e Ki ng sp ort Cit y Jail-8-

instead of the Washing ton CountyJ ail. The Peti t i o n er identified an a rre st warr ant for him that alleg ed that he commit ted agg ravated robbe ry . He noted that the war rant stated that it was applied for by Detec tive Cole and sig ned by Dwayne Snodg rass. The war rant stated th at i t wa s t o be executed at 941 Ma

ple Street, but the Petitioner asse rted that Counsel should have c halleng ed the aff idavit that supported the war rant because it lacke d probable cause

. He be lieved that, had Counsel

a dd re sse d th is i ssu e , his ar re st wo uld ha ve be e n fou nd un la wf ul andthe e vid e nc e a g a ins t hi m w ou ld have be en suppre ssed.

Simi lar ly
, th e Pe tit ion e r t e sti fi e d th a t Co un se l f a ile d to fi le a

mot ionto s up pr e ss a Mo ntg ome ry

War d r e c e ipt

that w a s il le g a lly

se ize d f rom hi s car. Th e Pe tit ion e r t e sti fi e d th a t a

sear ch wa rra nt for his vehicle was issued on June 22, 1999, and it ga ve police “ authority to look for blood, c lothing, ski ma sks, Mic rotel key car d, money , AAU basketba ll ticke ts, and an yev i d en ce perta ining to ag g ravated robbe ry at the Microte l on [ J une 20, 1999 ]

. ” T h e warrant stated that the Petitioner’s vehicle was located in the baseme nt of the Jus tice Center in Kingsport, Tennesse e, but the Petitioner had not g iven any one permission to move his vehicle f rom Pierce ’s apa

rtment. The Petitioner stated t hat t he Mont g omery Ward rec eipt was not l isted on the sear ch wa rra nt, and the trial court should have ruled that it was inadmissible. The Petitioner sa id that there wa s a sec ond Mo ntg ome ry

War d r e c e ipt fo un d a t the Mic ro te l fo ur or fi ve we e ks a ft e r the ro bb e ry , a ndit w a s a lso introduced at trial. The Petitioner testified that he discussed the re ceipts wit h Counsel because the Petitioner thought that the r ece ipts were the only phy sical evide nce that l i n k ed h i m to this crime. Whe n th e Pe tit ion e r d isc us se d th e re c e ipt s w it h Co un se l, C ou ns e l st a te d th a t he didno t w a nt t o
su p p r e s s th e r e c e ip t b e c a u s e th a t w o u ld a ls o r e s u lt in th e s u p p r e s s io n o f o th e r e v id e n ce tha t was fa vo ra ble to the Pe tit ion e r, su c h a s th e fo re ns ic e vid e nc e that c a me fr om the ve hic le wi th t e st r e su lts showing “no match” for the Petitioner. The Petitioner, howeve r, wa nted Counsel to arg ue the illeg al

se izur e of the ve hic le a nd of the re c e ipt

. Th e Pe tit ion e r co nc e de d tha t, at tria l, C ou ns e l ob je c te d to t h e i n tr o d u c t i o n o f t h e s e c o n d r e c e i p t , ar g u i n g t h a t i t w a s i rr e l e v a n t a n d p r e j u d i c i a l . A lso , w ith reg ard to the r ece ipts, the Petit ioner a sserted that Counsel was ineffec tive for f ailing to objec t to the

c h a i n o f c u s t o d y.

The Petitioner also a ssert ed that C ounsel ineff ectively failed to file a

motion for a spee dy trial. The Petitioner testified that he contac ted Counsel, prior to any delay s in the trial, and sp e c if ic a lly state d th a t he wa nte d Co un se l to fi le a mot ionfo r a

sp e e dy tr ia l. He state d th a t, h a d th is been done , the investigations would have been completed sooner, and he could ha ve possibly located other witnesse s for his trial.

Th e Pe tit ion e r t e sti fi e d th a t Co un se l in e ff e c tiv e ly faile d to inv e sti g a te the Pe tit ion e r’ s c a se in severa l way s. The Petitioner testified that Counsel should have inve stigated whether the g rand jury fore man was pr operly

authorized. He said that the same g rand jury fore man indicted him for other off enses, a nd the fore man was, the ref ore, not prope rly authorized. The Petitioner also a sserted that Co un se l f

a ile d to a de qu a te ly

inv e sti g a te the c a se by no t hir ing a private inv e sti g a tor . He sa id t h at an i n v estig ator wa s nece ssary beca use his case was c omplicated, and the police investig ation

wa s fa ult y

. Th e Pe tit ion e r te sti fi e d that Cou ns e l faile d to a de qu a te ly inv e sti g a te the sc re wd ri ve r i n the door. He asserted that Counsel should have conducted tests on the scre wdriver found at the hote l-9-

to determine if the scre wdriver preve nted the victim from exiting the re stroom. He stated that, based on these tests, he be lieved that the State would not have proven the forc ed conf inem en t element

re q u i re d fo r a ggra v at ed k i d n ap p i n g.

The Petitioner also asserted that Counsel was inef fec tive during his trial because he f ailed to object to the trial court’s determination that closing a rg uments be limited to forty minutes, which was unfair bec ause of

the complexityof his case

. He agr ee d t h at Counsel asked the Court for

a dd iti on a l ti me fo r h is c los ing arg ume nt, a nd
, fu rthe r, that Cou ns e l raise d thi s iss ue on dir e c t app e a l. During the trial, the Petitioner testified that Counsel was ineffe ctive when he failed to object to the tr ia l c ou rt ’s ins truc tio n th a t tria l de c isi on s we re to be ma de by Cou ns e l, n ot the Pe tit ion e r. He a lso testified that Counsel was i n ef fe ct ive for not attempting to admit a witness’ state ment to Office r Osterman that impli cate d someone e lse in this crime. He a sserted that Counsel failed to g et that witness’ name and addr ess so that the w i t n es s would be pre sent at trial. Similarly , he stated that there was e x culpatory

information from three witnesses who stated that they had obser ved anothe r black male outside the hotel prior to the robbe ry . The Petitioner admitted that ther e we re jury -out hearings during the trial on this iss ue, and the trial court r uled that Off

icer Osterman c ould not testify about the stateme nt be cause it was hea rsay . The Petitioner testified, thoug h, that he wa nted Counsel to tell the jury about this hearsa y statement during his opening statement, which w as prior to the tria l

c ou rt ’s ru lin g on thi s is su e, in orde r t o e sta bli shto the jury

that th e po lic e we re ne g lig e nt i n th e ir investigation. The Petitioner said that he instructed Counsel to tell the jury that the police of

fice rs failed in their i n v es t igation. The Petitioner also testified that Counsel failed to objec t to the trial court’s instruc tion to the jury , befor e their ve rdict, about the amount of the Petitioner’s fine.

The Petitioner asse rted that Counsel was ineff ective during the sentenc ing pha se of the trial beca use he f ailed to object to the tria l court’s findi n g not to allow the Petitioner the rig ht of

a llo c uti on . H e e xplaine d that Cou ns e l sh ou ld h a ve ob je c te d b e c a us e the tr ia l c ou rt se nte nc e d h im without asking the Petitioner if he wished to make a stateme nt in court, and he said that he did not know that he ha d the rig ht to allocution until afte r hi s sentenc ing hearing. He stated that, if he had been a ble to speak, he might have been a bl e t o persua de the judg e not to g ive him the maxi mum sentenc e. He explained that he would have stated that the ca se wa s weak and full of e rror s and that he would h a v e e xp li c it ly s tate d th a t th e s c r e w d r iv e r c o u ldn o t h a v e p r e v e n te d th e v ic ti m f r om leaving the re stroom at the M icrotel. The Petitioner testified that he a sked Counsel to raise this issue in the motion for new tria l, but Counsel did not do so, and Counsel did not r aise this issue on direc t appea l.

T h e Pe ti ti o n e r a s s e r te d th a t Co u n s e l w a s in e f f e c ti v e d u r in g h is d ir e c t ap p e a l. F ir s t, he testif ie d th a t C o u n s e l r e p r e s e n te d h im o n ap p e a l a g a in s t th e Pe ti ti o n e r ’ s w il l. H e s tate d th a t, on Dec ember

6, 2002, he filed a

civil lawsuit ag ainst Counsel. He sa id that this l awsuit was f iled prior to Counsel’s submiss ion of his appellate brief a nd prior to the ora l arg ument in this case. Additionally , the Petitioner stated t hat he sent letters to Counsel asking Counsel to withdraw, a nd he filed motions with the appellate court a sking that Counsel be remove d from his ca se. The Petitioner testified that Counsel did not file a mot ion to withdraw until the time period for filing the petition to rehea

r had e x pired. He testified that Counsel’s fa ilure to file a timely motion to wit hdraw-10-

preve nted the Petitioner fr om repre senting himself or g etting new counsel appointed. He e x plained that Counsel should ha ve filed a motion to withdraw when Counsel wa s notified of the Petitioner’s lawsuit ag ainst him, but C ounsel did not file a motion to withdra w until four months after Counsel

was served with the civil lawsuit.

The Petitioner testified that, in his direc t appea l, Counsel wa s ineffe ctive for not raising the issue that the Petitioner’s vehicle was illega lly sear ched, and that the Montg omery Ward rec eipt was inadmissible as fruit of the illeg al sea rch. H e asse rted that t h i s prejudice d him because Counsel would have be en succ essful with this issue on direc t appea l. The Petitioner noted that the Court of Criminal Appeals ruled in his direc t a ppeal that the Montgome ry Ward rec eipt found at the Micr otel was inadmissible, but that the err or wa s harmless. He asserted that the Court would have found the

err or harmful if the Montg omery Ward rec eipt fo u n d i n h i s car was a lso improperly

admitted. There fore , he asse rted that hewas pre judiced by

Counsel’s failure to appea l this i ssue.

The Petitioner asserted that Counsel w as ineffe ctive beca use Counsel br eac hed a w ritten contra ct with the Petitioner. The Petitioner testified that, acco rd i n g t o the contra ct, Counsel was supposed to file a suppleme ntal brief that the Petitioner had draf ted with Counsel’ s appellate brief. The Petitioner testified that his m o t h er delivere d the Petitioner’s supplemental brief to Counsel’s of fi c e , b ut C ou ns e l ne ve r f

ile d th e su pp le me nta l brie f. He state d tha t he at te mpt e d to file his pr o s e brie f w ith the Cou rt , b ut h is r e qu e st w a s d e nie d b e c a us e the Pe tit ion e r w a s r e pr e se nte d b y Cou ns e l. Th e Pe tit ion e r t e sti fi e d th a t hi s su pp le me nta l brie f c on ta ine d is su e s n ot r a ise d b y Cou ns e l’ s a

pp e llate brief, and he believed t hat, i f C ounsel had raised t hose i ssues, he may have ha d a diffe rent re sult on

app e a l. T he Pe tit ion e r te sti fi e d that Cou ns e l faile d to pr ov ide him wi th a c op y of Cou ns e l’ s a

pp e llate brief prior to filing the brief.

On cr oss-examin ation, the Petitioner testified that he did not tell Counsel that he had a n “alibi,” but he told Counsel that he wa s at Club Har v ey ’s o n the nig ht of this crime, and he asked Counsel to talk t o M ar shall Dover, a doorman at Club Harvey ’s to verify this. The Petitioner testified that he met with Counsel on this c ase “no more than five times,” not sixteen time s

. The Petitioner testified that Counsel did not tell him that the State had turne d its file over to Counsel, and he did not rec eive c opies of eve rything in the f ile.

With re g ard to the pr e tr ia l mo tio ns , th e Pe tit ion e r t e sti fi e d th a t he tol d Co un se l th a t, u nle ss
so me thi ng wa s p la nte d in his ve hic le
, the re wa s no thi ng fr om his ve hic le that wo uld c on ne c t him to this crime. The P etitioner t estified that he filed a number of new spaper article s containing pretria l pu bli c ity . H e sa id t

hat th e tr ia l c ou rt

a sk e d th e jur or s if the y ha d r e a d a ny of the ne ws pa

pe r a rt ic le s, bu t no ne ha d. Th e Pe tit ion e r t e sti fi e d that he wante d the Mo ntg ome ry War d re c e ipt fr om his ve hic le excluded, but he also wa nted other e vidence from t he sea rch that was bene ficial to him to be admitted. The Petitioner testified that he compar ed the rec eipt found at the h o t el wi t h t h e rece ipt found in his vehicle, a nd he told Counsel that the rec eipt from the ve hicle wa s his, and the other

re c e ipt c ou ld b e lon g to him

. He te sti fi e d th a t Co un se l f a ile d to fi le a

mot ionto s up pr e ss h is a

rr e st, wh ic h h e a sse rt e d w a s il le g a l be c a us e he wa s ta ke n to Ki ng sp ort a ndno t to the Was hin g tonCou nty J ail. He e x plained that he should have been taken to the nea rest mag istrate. The Petitioner admitted-11-

th a t K in g s p o r t h a d a w arr a n t f o r h is arr e s t, b u t h e s tate d th a t th e r e w a s n o p r o b ab le c a u s e to issue the wa rr a nt. Th e Pe tit ion e r t e sti fi e d th a t Co un se l sh ou ld h a ve hir e d a private inve sti g a tor

to inv e sti g a te the of

fi c e rs , c ri me sc e ne , a nd the e vid e nc e , a ndhe state d th a t Co un se l di d n ot i nv e sti g a te or g o to the scene himself.

Th e P e t i t i o n e r t e s t i f

i e d t h a t C o u n s e l d i d n o t m o v e f o r a s p e e d y tr i a l
, e v e n t h o u g h h e tol d Counsel that he wa nted to “move on with this case fast as possible” in late 1999 or e arly 2000. The Pe tit ion e r t e sti fi e d th a t he didno t r e c a ll a sking fo r a c on tin ua nc e on Janu ary

18 , 2 00 0, to o btain reports and evidenc e fr om the TBI and the F BI . He sa id that he and Counsel ag ree d with the State’s reque st for a c ontinuance to obtain test re sults from the TBI or F BI , which he st ated did not pl ace him at the scene . The Petitioner did not rec all if the State aske d for a continuance on J uly 17, 2000, or if the de fense reque sted a conti nuance on September 18, 2000. The Petitioner testified that Offic er O sterman’ s testimonycre ated the n ee d fo r a continuance on Fe bruary 21, 2001. He conclude d that, of four

continuance s, he only

reme mbere d that the def

ense a sked for one. He a g ree d that, i f any

of the a g e nts c ou ld n ot a

pp e ar i n c ou rt , th e de fe ns e wo uldha ve b e e n f or c e d to re qu e st a continuanc e to g et their testimony on the rec ord. He state d that, afte r the de fense determined that the e vid e nc e wa s b e ne fi c ia l to the Pe tit ion e r, th e de fe ns e wo uldha ve wante d th os e wi tne sse s to t e s t i f y.

Th e Pe tit ion e r r e c a lle d te lli ng Cou ns e l du ri ng tr ia l th a t Co un se l ha d d on e a g oo d jo b o n s ome of the issues. The Petitioner said that, afte r th e t ri al
, an d at sentenc ing, hewanted to spe ak to the tr ia l c ou rt abo ut h is s e nte nc e . H e ide nti fi e d a se nte nc ing re po rt

that st a te d th a t “ the [Pet iti on e r] d id

no t w ish to make a state me nt. ” Th e Pe tit ion e r te sti fi e d tha t he an d Coun se l we re pr e se nt d uring his sentenc ing, and he re called that there w as no pre sentenc e heari ng report for this case , so the prese ntence report for a dif fer ent ca se wa s utili zed.

The Petitioner testified that h e as ked Counsel to withdraw f rom this case on nume rous
occa sions, both pri o r t o and during the appe al, but Counsel refuse d to withdraw. He identified a document showing that the Court of Crimin a l Ap p e a ls de nied Counsel’s motion to subst itute counsel beca use the Petitioner did not show g ood cause for the r emoval o f h i s at t o rney . He state d that Counsel has repr esente d him on se vera l other ca ses, some of whic h are still pending . The Petitioner testified that he f

iled a malpra ctice la wsuit ag ainst Counsel, wh i ch was dism issed beca use the Petitioner was unable to a pay an indepe ndent attorne y

to file an a ffidavi t s t at i n g that Counsel’s conduct wa s neg lige nt. The Petitioner re ceive d a letter from Counsel on Marc h 26, 2003, stating that Cou ns e l c ou ld not rep re se nt the Pe tit ion e r b e c a us e the Pe tit ion e r f ile d a la ws uit a g a ins t Co un se l. He sa id that Counsel a ctually withdrew on April 2, 2003, one da y prior to the time limit for filing

a motion for rehe aring

. The Petitioner conce ded that Counsel ga ve him a copy of his appellate brief afte r it was filed.

Counsel testified about his investigation and prepa ration for trial. He sa id that, for this case
, he met with the Petitioner six teen tim es t o p re p ar e for trial and to discuss issues related to the Petitioner’s case , and eac h meeting lasted betwee n thirty minutes and two hours. Counsel testified that he also met with the P etitioner several other times, and he rec eived a bout thirtyor more phone-12-

calls fr om the Petitioner. Counsel te stified that he had open-f ile discovery from the State, meaning that he had a cce ss to everything in the St at e’s file other than wor k product. He said that he ha d

acc ess to all witnesses’ stateme nts before trial, but he re membere d that some witnesses did not g ive a stateme nt. Counsel testified th at h e went throug h the file, pa g e-by -pag e, copie d whateve r he neede d and took notes, and he provided the Petitioner with a copy of eve rything he had, including the witnesses’ statements. Counsel stated t hat t he P etitioner ca lled and aske d specific ally about the witnesses’ statements, and he said he was sure that the Petitioner ha d every witness statement that Cou ns e l ha d. He sa id that, i n c omp ari so n to his oth e r crimi na l def e ns e c a se s, the State in this c a se provided him the most acc ess to the prosec ution’s file, and any thing he asked to see he wa s g iven. Counsel testified that he neve r thoug ht about hiring an investig ator, a nd he did not rec all if he discussed this issue with the P etitioner. He testified that he spent approximately 149 hours out-ofcourt on the P etitioner’s case, he interviewe d all of the off icer s and witnesses, a nd he we nt to the hotel and surr ounding a

rea a couple of times.

Counsel rec alled that, during his investigation, the Petitioner mentioned a pote ntial alibi, but at diffe rent times the Petitioner g ave him diffe rent a libis. C ounsel testified that the Petitioner

a dmi tte d h e wa s at th e crime sc e ne , a ndse ve ra l w itn e sse s p la c e d th e Pe tit ion e r at th e Mic ro te l. Counsel ag ree d that the Petitioner stated that he w as in the ar ea se lling stolen AAU tickets when he returne d to the Microtel, and, another time, the Petitioner told Counsel that he was selling c ocaine in th e ar e a a n d a t H ar v e y ’ s Cl u b

. H e d id n o t r e c a ll th e Pe ti ti o n e r w a n ti n g to u se these illeg al activities as an a libi. Counsel testified that the Petitioner mentioned Mary Kay Arnold as a

potential alibi witness, but the Petiti oner w as adamant that he did not want Arnold involved.

C o u n s el t e s t i fi ed t h at h e a n d t h e P et i t i o n erd i s cu s s ed t h e r ea s o n s fo r, an d aga i n s t , fi l i n g a motion for a spee dy trial. Counsel stated t hat the first trial date was January 18, 2000, and he and t h e P e t i t i o n e r

a g r e e d t o a s k f

o r a c o n t i n u a n c e i n o r d e r t o g e t e v i d e n c e f r o m b o t h t h e T B I a n d F B I. He e x plained that this evidenc e was benef icial to the Petitioner, and he and the Petitioner de cided that they did not w ant to proce ed to trial without it. Couns el explained that the Petitioner was

a da ma nt that no ne of

the e vid e nc e wo uld lin k him t o th e c ri me , a ndthe Pe tit ion e r s ta te d th e re wo uld be no blo od , f

ibe rs , or s ho e print s c on ne c tin g the Pe tit ion e r t o th e ho te l. O n th e ne xt tr ia l date , July 17, 2000, the State filed a motion for a continuanc e bec ause Detec tive Cole was g oing to be out of town. Counsel testified that he opposed this motion, but the trial court g rante d the State’s motion. The trial wa s set for Septembe r 18, 2000, but, on that date, Counsel said that he filed a se cond motion for a continuanc e beca use some of the expert witnesses from the TBI and FB I could not be prese nt for tria l. Counsel said that the State proposed that they stipulate to the testimonyof the

e xpe rt s, bu t the Pe tit ion e r wa nte d the e xpe rt s to te sti fy in c ou rt . Co un se l te sti fi e d th a t th e tr ia l date

wa s mo ve d to F e br

ua ry 21 , 2 00 1, a nd , c los e to that date , Co un se l r e qu e ste d a no the r c on tin ua nc e to investigate evidence of a st atement that Of fice r Osterman hea

rd about the c rime. Counsel testified that this evidence wa s previously unknown to the def

ense. Counsel testified that the Petitioner

a g re e d to the c on tin ua nc e , a ndthe tr ia l c ou rt g rante d th e c on tin ua nc e a ndse t the tr ia l date fo r Jul y 23, 2001, and the tria l proce eded on that date.

Counsel testified that he and the Petitioner discussed t he is sue of suppressing the evidenc e-13-

from the Petitioner’s ve hicle. Hestated that “it wa s a very fine li ne” because m ost of the e vidence from the ve hicle helpe d the def ense. H e said that be cause the crime was so violent t he lac k of fore nsic evidenc e in the Petiti o n er ’s car wa s very important to the defe nse. Counsel testified that he and the Petitioner discussed th i s i s s ue seve ral times, and they decide d that they

wanted the evidenc e to be a dmitted. W ith reg ard to the motion for c hang e of ve nue, Counsel testified that he ha d n o indi c a tio n th a t th e g randjury ha d b e e n taint e d b y

ne ws pa pe r a rt ic le s, a ndhe didno t r e c a ll dis c us sin g thi s wi th the Pe tit ion e r. F ina lly , c on c e rn ing the mot ionto s up pr e ss the Pe tit ion e r’ s a rr e st, Counsel testified that, while he wa s awa re that the Petitioner was ar rested in Johnson C ity , which is located in Washington County
, n ot Sull ivan County , he wa s unawa re that there w as anything ill e g a l a bo ut the Pe tit ion e r’ s a

rr e st. He op ine d th a t a ny mot ionre g ard ing the P eti tio ne r’ s a rr e st

wo uldha ve be e n f

ri vo lou s.
Counsel testified that, during trial, the Petitioner’s comments a bout Counsel’s performance
wer e very positive, and the Petitioner indicated that he was please d with Counsel’ s handling of the

case . He r emember ed that the Petit i o n er wanted Counsel to pre sent in opening arg uments the statement that Off

icer Osterman ha d hear d, but the judge had rule d that the statement wa s inadmissible hearsay

. C o u n s el testified that he ha d the opportunity to cross-e x amine Of

fice r Osterman, and he r efe renc ed and c halleng ed the way the offic er handled the crime scene . Counsel testified that, during this c ross-examination, he went throug h the information that the P etitioner wanted him to cove r. Counsel also re called that, after closing argu m en ts and during jury deliberation, the Petiti oner w as conf ident that the jury

would acquit him. Counsel te stified that he

a ndthe Pe tit ion e r r e so lve d th e ir iss ue s a bo ut the c a se e ith e r i n pe rs on or on the ph on e , a ndhe sa id that th e re we re no un re so lve d iss ue s. Cou ns e l te sti fi e d that he wa s c e rt a in that th e Pe tit ion e r w ou ld have told him if the Petitioner had a ny unresolved issues.

C o u n s el t es t i fi ed t h at h e a n d t h e P et i t i o n er h ad d i s cu s s i o n s ab o u tt h e P et i t i o n er ’s s en t en ci n g. He state d that they

revie wed the pr esente nce re p o rt , t he victim impact statements, and the Petitioner’s prior c o n victions to ensure that a ll of these we re a ccur ate. The Petitioner did not indicate that the r eport wa s inacc urate or that it omitt ed information.

Counsel testified t hat t he P etitioner filed a civil rig hts complaint ag ainst him on Dece mber 6, 2002, twelve day s after oral a rg uments befor e the C o urt of Criminal Appea ls. He testified that he re ceive d an orde r fr om the Court of Criminal Appeals on De cembe r 16, 2002, denying the Pe ti t i o n e r ’ s r e q u e s tt o r e m o v e C o u n s e l

. C o u n s e l t e s t i f i e d t h a to n e o f

t h e P e t i t i o n e r ’ s c o m p la int s involved Counsel’s ref

usal to file a suppleme ntal brief that the Petitioner draf ted. He said that he had re ceive d this document from the Petitioner, but he ha d not ag ree d to submit the brief . Counsel stated t hat he rea d the C ourt of Criminal Appea ls decision when it was r elea sed, and, at that time, he sent a letter to the Petitioner informing him that Counsel would make a r equest to withdraw . He testified that the letter

also informed the Petitioner that he could a ppeal his ca se, and the letter set forth the de adlines in the Petitioner’s ca se. Counsel stated that he a lso sent this information to the Court of Criminal Appeals.

On cr oss-examination, Couns el ag ain testified about the Petitioner’s c omplaint that he was-14-

ineffe ctive for

failing to f

ile pretria l motions. He said that he knew that he could ha ve filed a motion to exclude the Montgome ry Ward rec eipt obtained from the Petitioner’s ca r without reque sting that other e vidence from the c ar be suppressed. H e testified that h e d id not reca ll whether he filed a mot ion in this c a se , b ut h e kn e w that he ha d r a ise d th e iss ue on the mornin g of the Pe tit ion e r’ s tria l. Cou ns e l c on c e de d th a t he kn e w a bo ut the tw o M on tg ome ry War d re c e ipt s we ll i n a dv a nc e of tr ia l, but h e and the Petit ioner we re not c oncerned about the r ece ipt from the vehicle beca use it was irrele vant. Counsel testified that he and the Petitioner wer e conce rned about the re ceipt found in the victim’s belong ings be cause that was the only piece of evidenc e that place d the Petitioner on the side of the c ounter with the c lerk. About the speedy trial motion, Couns el testified that he and the Petitioner discussed the spee dy trial issues but had r esolved those issues. He explained to the Petitioner that, by

ag ree ing to or

seeking continuance s, the Petitioner was giving up his right f or a speedy trial. About the motion to suppress the Petitioner’s arr est, Counsel testified that he r eviewe d the ar rest wa rra nt to determine if pr obable c ause e x isted, and he discussed this with the Petitioner. About the motion for a c hang e of ve nue, Counsel testified that he f irst beca me awa

re of newspa per articles about the crime when he first met with the Petitioner, and he did not file a motion for a ch an ge o f v en u e o r f

o r i n d i v i d u al v o i r d i re o f t h e j u ro rs

. He ex p l ai n ed t h at h e f el tt h at , b y

fi l i n g a mot ion , th e iss ue wo uld be br ou g ht to the jur or s’ a tte nti on . Co un se l te sti fi e d th a t he didno t r e c a ll any jurors having knowledg e of the case , which surprised him.

Wit h reg ard to his i nvestig ation of t his case , Counsel testified that, when he was a ppointed to the case , he met with Detec tive Cole first to determine the names of the office rs that wer e pre sent

a t th e c ri me scen e. He state d th a t he the n in te rv ie we d e ve ry of fi c e r that w a s p re se nt at th e c ri me
scene

. H e te s ti f

ie d th a t h e in te r v ie w e d O f f ic e r O s te r man , a n d th e o f f ic e r d id n o t te ll h im that the

o f f i c e r h a d h e ar d a t h i r d p ar t y s t a t e m e n t

. C o u n s e l r e c a l l e d t h a t h e t h o r o u g h l y d i s c u s s e d the c ri me
scene with Office r Osterman, and he testified that Offic er Osterman never mentioned the stateme nt until jus t beforethe Fe bruary 2001 trial date. Counsel testified that this statement wa s helpful to the de fe ns e , a n d h e s a i d t h a t O f f i c e r O s t e r m a n o f

f e r e d n o e xp l a n a t i o n o n w h y i t t o o k h i m s o lon g to

rec all this statement. Counsel testi fi ed that he we nt to the Microtel on at lea st two occa sions, but he did not a tt e mp t t o d e te r mi n e w h e th e r th e s c r e w d r iv e r

p r e v e n te d th e d o o r

f r o m o p e n in g

. He

e xpla ine d th at he insp e c te d th e do or a ndthe bathr oo m, andhe sp ok e wi th the of fi c e rs abo ut this iss ue . Co un se l te sti fi e d tha t the Pe tit ion e r c omp la ine d th a t no te sts ha d b e e n d on e on the do or e arl y on, but Counsel decided that it was best to not test the door and to arg ue that the State fa iled to prove that the s cre wdriver preve nted t he door f rom opening . Counsel said that he also raised this issue on appea l.

Cou ns e l te sti fi e d that, jus t be fo re c los ingarg ume nts , th e Pe tit ion e r d e ma nd e d th a t he raise the issue of a n illega l arre st. Counsel thought that he did not have enoug h fac ts to support this iss ue, so he ap p ro ac h ed t h e trial court, and the tria l court ruled that he could not addr ess this issue. He te sti fi e d th at he di d n ot r a ise the iss ue of ill e g a l arr e st o n a

pp e a l. H e e xpla ine d th a t hi s understanding of t

h ePe titioner’s arg ument related to the illeg al ar rest is that Sulli van County office rs
arr ested the Petitioner in Washington C ounty , and he stated t hat he did not think that the Petitioner’s

arr est was illeg al. Counsel testified that he e x plained to the Petitioner t hat the Petitioner had a rig ht to speak at his sentencing , but the Petitioner chose not to speak. He said that the P etitioner felt that-15-

this was an issue to ra ise on appe al. Counsel did not reca ll if he had e ver trie d an ag g ravated robbe ry or ag g ravated kidnapping case befor e the Petitioner’s case , but he st ated that he had tried fe lonies of e ve ry c la ss.

Cou ns e l te sti fi e d tha

t, a t va ri ou s sta g e s th ro ug ho ut h is r e pr e se ntatio n, the Pe tit ion e r w ou ld communicate that he was satisfied or unsatisfied with Counsel’s performanc e. Counsel testified that the Court of Criminal Appea ls ruled, on more tha n one occ asion, t hat there was not just causefor Counsel’s remova l. He stated that, after oral a rg ument, he did not fee l that he neede d to withdraw beca use he w as wa iting for

the opinion to be rele ased. Counsel testified that h e re v i ew ed the Pe tit ion e r’ s su pp le me nta l app e llate brie f f or a ny le g iti ma te iss ue s, bu t he didno t se e a ny iss ue s in the supplemental brie f that he thoug ht should have bee n raised on appea l. Counsel thought that he had addre ssed every issue he could leg itimately raise w ith the Court of Criminal Appeals. He stated that it was not his understanding that he ag ree d with the Petitioner to file the supplemental brie f.

Counsel testified that he did not raise some of the issues that the Petitioner c omplained about during the post-conviction hea ring in the Petitioner’s direc t appe al. C ounsel testified that he me t with the Petitioner prior to filing a motion for new tria l, and he state d that they went throug h eac h of the issues that the Petit ioner had written down. Counsel rec alled that they rea ched a

resolution

on eac h of the issues, and he said that the Petitioner was satisfied. He state d that, except for the illega l a rre st issue which he thoug ht lacked me rit, he ra ised those issues on appe al. Counsel said that he ra ised thirteen issues on a p p ea l
, i ncluding the issue about the state ment that Offic er O sterman hear d, which wa s an important one to the Petitioner. Counsel said that he did not raise issues that he dee med frivolous bec ause the y wer e unsupported by

law. Counsel re called that the Petitioner was satisfied with the thirteen issues r aised on appeal. He said that he raised t he is sue, on appea l, of how many pho to g r ap h s w e r e in tr o d u c e d ab o u t th e v ic ti m’ s in ju r ie s , a n d h e te s ti f

ie d th a t th e Co u r t of Criminal Appeals dete rmined that the issue wa s harmless er ror.

On re dir e c t exam inatio n, Cou ns e l te sti fi e d th a t he ma de a mot ionto e xclu de ite ms at tria l, and he c alled the tria l co u rt ’s attention to the issue of the Petitioner’ s illega l arre st, and the court ruled on that issue. Counsel stated that, with re g ard to the f ailure to subpoena

witnesses, the Petitioner had ce rtain people transporte d from the De partment of C o rr ec t i o n, including the Pe tit ion e r’ s b ro the r, bu t on c e the wi tne sse s ar ri ve d, the Pe tit ion e r d e c ide d th a t he didno t w a nt t o c a ll the m a s w itn e sse s. He te sti fi e d th a t th e Pe tit ion e r did no t gi ve him the na me s of any wi tne sse s to subpoena to support the Petitioner’ s alibi or any other de fense at trial.

Ba sed upon this e vidence
, the post-conviction court issued an extensive order of dismissal

a dd re ssi ng nu me ro us iss ue s a ndc on c lud e d:

Th e [P]et iti on e r i s n ot e nti tle d to Pos t Con vic tio n Re lie f up on a ny iss ue , o r any

of his testimony , or any

combination of issues, or upon his conclusions that he is entitled to Po s t C o n v ic ti o n Re li e f
, w h e th e r o r n o t s p e c if

ic a ll y a d d r e s s e d [i n th is o r d e r ].

WHEREFORE the Post Conviction Petition is dismi ssed and the pr ay er f or re lief-16-

is denied upon this Court’s finding that the [P ]etit ioner ha s failed to prove by clea r and convinc ing pr oof that he is e ntitled to Post Conviction Re lief or that he has f ailed to establish actual pr ejudice.

I t is fr om this or de r o f the tr ia l c ou rt that th e Pe tit ion e r n ow app e a ls.

II. Ana lys is

On appe al, the Petitioner contends that: (1) he re ceive d ineffe ctive assistanc e of c ounsel; (2) the State caused exculpatory evidenc e to be lost a nd unavailable to the Petitioner; ( 3) the trial court denied his rig ht to allocution; (4) the trial court im proper ly limit ed trial counsel’s tim e for closing arg ument; (5) the tria l court er red w hen it ruled that the Petitioner could not instruc t his trial counsel about trial strate g y ; and (6) the trial court err ed by instructing the jury conce rning the amount of fines to be imposed.

I n order to obtain post-conviction relief
, a petitioner must show that his or her c onviction or sentenc e is void or voidable be cause of the a bridg ment of a constituti onal right. Tenn. Code Ann. § 40-30-103 ( 2003). The pe titione r b ear s the burden of proving fac tual alleg ations in the petition for post-c onviction re li e f

b y clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30- 110(f) (2003). Up o nr e v ie w, this court will not re-we igh or re- evaluate the evide nce be low; all questions concerning the cr edibility of wit nesses, the weig ht and value to be g iven their testimony , and the f actua l issues raised by the evidenc e ar e to be r esolved by the trial judge
, not the appellate courts. Momon v. St ate, 18 S.W. 3d15 2, 15 6 ( Te nn . 1 99 9) ; H e nle y v. Sta te , 960 S.W. 2d 57 2, 57 8- 79 (T e nn . 199 7) . A po stc on vic tio n c ou rt ’s fa c tua l f ind ing s a re su bje c t to a

de no vo re vie w b y

thi s Co urt; h ow e ve r, we mus t

acc ord these f

actua l findings a

p re s u m p t ion of corr ectne ss, which is overc ome only when a preponde ranc e of the evidenc e is c ontrary to the post-conviction court’s fac tual finding s. Fields v. State, 40 S.W .3d 450, 456 (Tenn. 2001). A pos t-conviction court’s conclusions of law are subject to a pure ly

de novo re view by

this Court, wit h no presumption of cor rec tness. I d. at 457.

A. Ineff ective Assistance of Counsel

The Petitioner cla ims that the post-conviction court er red wh en it dism issed his petition beca use Counsel was inef

fec tive in four way s: (1) for failing t o file several pretrial m otions; (2) for failing to adequately

investigate the ca se; (3) f or fa iling to ade quately

repr esent him at trial and during s en t en ci n g ; and (4) f or fa iling to ade quately

repr esent him on appe al. The right of a criminally acc used t o repr esentation is g uaranteed by both the Six th Amendment to the United States Constit ution and Article I
, section 9, of the Te nnessee Constit ution. I d.; Ba x ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) . This rig ht t o re p re s entation i ncludes the right to “r easona bly eff ective”

a ssi sta nc e . St a te v. B urns , 6 S.W. 3d 45 3, 46 1 (T e nn . 199 9)

. Th e Te nn e sse e Sup re me Cou rt ha s h e ld that the issue of inef

fec tive assistance of counse l is a mix ed question of law and fa ct and, a s such, is subject to a de novo r eview. I d.

I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court must determine w hether-17-

the advice g iven or services rende red by the attorne y

are within the rang e of c ompetence demande d of attorne y s in criminal case s. Ba x ter, 523 S.W.2d at 9 3 6

. T o p re v ai l on a claim of ine ffe ctive assistance of counsel, a petiti oner must show that “counse l’s repr esentation fell below an obje ctive sta nd ardof

re a so na ble ne ss, ” Str ic klandv. Was hin g to n, 466 U .S. 66 8, 68 8 ( 19 84 ), a ndthat th is perf ormanc e pre

judiced the de fense , resulting in a failure to produce a re liable re sult. I d. at 687; Coope r v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the re quirement of pr ejudice, a petitioner must show a re asonable probabili t y that, but for counse l’s unrea sonable e rror , the fa ct finder w ould have ha d rea sonable doubt reg arding the petitioner’s g uilt. Strickland, 466 U.S. at 695. This rea sonable proba

bilitymust be “suff

icient to undermine c onfidenc e in the outcome.” I d. at 694;

see a lso Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994).

W h en ev al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e within the context of the case as a whole, taking into account a ll releva nt

c ir c ums ta nc e s. Str ic kland , 4 66 U. S. at 69 0; State v. Mit c he ll, 75 3 S. W.2 d 1 48 , 1 49 (T e nn . Crim. App. 1988). The revie wing court mus t ev al u at e the que stionable conduc t from the attorne y ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the re v iewing court must be hig hly defe rential a nd “should indulge a strong presumption that counsel’s c onduct fa l l s wi t hin the wide rang e of

rea sonable prof

essional assistance .” Burns, 6 S.W .3d at 462. Counsel should not be deemed to ha ve been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Th e fa c t th a t a pa rt ic ula r s tr a te g y or ta c tic faile d o r h urt th e de fe ns e do e s no t, stand ing a lon e , e sta bli sh un re a so na

ble repr esentation. House v. State, 44 S.W .3d 508, 515 (Tenn. 2001) (citati o n omitted); Thomas B rand on B oo ke r v . St a te , N o. W20 03 -0 09 61 -C CA -R 3- PC, 2 00 4 WL 58 76 44 , at *4 (T e nn . Crim. App., at Jackson, Mar. 24, 2004)
, perm. app. de nied (Tenn. 2004)

. Howeve r, def ere nce to matter s of str a te g y a ndta c tic a l cho ic e s app lie s only if the c ho ic e s ar e inf orme d o ne s b a se d u po n a de qu a te prepa ration. House, 44 S.W.3d at 515.

1. P r e tr ial M ot ion s

Th e Pe ti ti o n e r

a s s e r ts th a t C o u n s e l w a s in e f f e c ti v e f o r f a il in g to f il e f iv e d if f e r e n t p retria l motions: (a) a motion to suppress the seizure of his vehicle and, relatedly
, a motion to suppress the Montgome ry

Ward rec eipt found in the vehic le; (b) a motion to s uppress fr

uits of his arr est; (c) a motion for chang e of venue; (d) a speedy trial motion; and (e) a motion to hi re a

private inve stigator.

a. M ot ion to Suppr e ss V e hic le Se ar c h

Th e Pe tit ion e r c on te nd s th a t Co un se l w a s in e ff e c tiv e fo r f

a ili ng to fi le a

mot ionto s up pr e ss all the evidence obtained from search of the Petitioner’s vehic le bec ause it wa s illega lly siz ed. The State responds that Counsel was not ineffe ctive for failing to file a motion to s uppress be cause much of the e vidence from the Petitioner’s ve hicle wa s helpful to the Petitioner. Additionally , the Petitione r c o n te n d s th a t C o u n s e l w a s in e f f e c ti v e f o r f a il in g to f

il e a mo ti o n to s u p p r e s s the Montgome ry

Ward rec eipt found in the Petitioner’s vehicle. The State counter s that Counsel was-18-

not ineffe ctive bec ause ne ither Counsel nor the Petitioner wa s conce rne d w it hth erec eipt, and neither

sa w the va lue of a tte mpt ing to su pp re ss the re c e ipt

. F urthe r, the State a sse rt s th a t th e Pe tit ion e r d id not prove pre

judice.

Wit h reg ard to w hether Counsel w as ineffe ctive for failing to f ile a motion to suppress the Petitioner’s vehicle ’s seizure, the post-c onviction court found:

T h e [ P ] e t i t i o n e r w a s arr e s t e d i n o r a t a h o m e o f a t h i r d p ar t y i n J o h n s o n C i t y, Tenne ssee (W as hington County ), and not out of his automobile. As a r esult, the seizure of the vehicle was not a true and full Carroll doctrine seizure, but the office rs ha d e xig e nt c ir c ums ta nc e s.

The off icer s knew the [P] etitioner’s c ar and Fran k L i gh t, Kingsport Poli ce Depa rtment offic er, ha d a belief that the ca

r had be en used in c riminal activity

. . . . I n a ny c a se , th e c ar w a s p ark e d at a ho us ing pr oject par

kin g lot a ndwa s e vid e ntl y mobile and ca

pable of being operated.

Th e po li ce di d n ot s e arc h th e c ar a t th e sc e ne , b ut o pte d to tow the c ar t o Ki ng sp ort ( Sul liv a n Co un ty ) andthe n atte mpt to o btain a se arc h w arr a nt f ro m a Sulli van County

Gene ral Sessions J udg e.

. . . .

Her e, the police officer s testify ing at the Post C onviction hearing w ere about five (5) y ear s removed f rom the seizure a nd their memory at t h e t i m e. The automobile to be seized was in a public parking lot a nd mobile and the office r wa s able to re member the y

had rea son to be lieve the car was used in a crime. Also see:

se arc h w arr a nt.

I n such circ umstances, the C o u rt ca n not find the seizure or se arc h was

unrea sonable notwithstanding that some lack of detail supplied by the officers at the Post C onviction hearing, to w it: g ener ally car matches description of car at . . . scene of crime. The [P] etition[ er] seems to only say his car w as seized; there fore , orig inal trial [counsel] was ineffe ctive.

Further, orig inal defe nse counse l testified that the police wer e sear ching for blood that may have been c arried into some portion of the ca r due to the g reat bloody injury to the victim. The police c hecke d the ca r out from s t em to stern [driver’s

c omp art me nt to tru nk wh e re the pa pe rs /r e c e ipt we re fo un d]. T he [or ig ina l c ou ns e l] ind ic a te d th a t he a ndthe [Pet iti on e r] w e re a nxiou s to sh ow that the la b re po rt c a me up zero in reg ards to the victim’s blood. Clearly , a trial tac tic was involved.-19-

The post-c onviction court conc luded:

The towing of the car issue is without m erit and the[P ]etit ioner ha s failed to prove by clea r and c onvincing ev i d en ce that the [P ]etit ioner’s origina l counsel wa s ine ff e c tiv e to r a ise the tow ing [se izur e ] o r se arc h of the c ar iss ue a t tria l or on app e a l. Further, the [P] etitioner has f ailed to establish that he wa s prejudice d.

We conclude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s finding s. The evide nce shows that Counsel disc ussed with the Petitioner sever al times the issue of suppressing the evidenc e from the Petitioner’s vehicle based on its a lleg edly illega l se izure. The two

c on c lud e d th a t Co un se l sh ou ld n ot f ile su c h a mot ion to s up pr e ss a ll the e vid e nc e fo un d a s a re su lt of the c ar’ s sear ch and se izure because much of the evidenc e, or r ather the lack of

blood evidence
, found i n the car was favor able to the P etitioner. I ndeed, the lack of fore nsic evidenc e fr om the car

wa s a n impo rt a nt p art

of the Pe tit ion e r’ s de fe ns e . Cl e arl y , th is w a s a ta c tic a l de c isi on , a ndwe wi ll not find Counsel ineffe ctive merely beca use a differ ent procedure might have produce d a diffe rent result. See Williams, 59 9 S .W.2d at 279-80. Under the se circ umstances, the Petitioner ha s not proven that Counsel was ineff ective, and he has not shown how he was pre judiced.

Th e Pe tit ion e r n e xt c on te nd s that Cou ns e l wa s ine ff e c tiv e fo r no t f

ili ng a mot ionto s up pr e ss the Montgome ry Ward rec eipt that was found in the Petitioner’s car

. The Petitioner asse rts that the

sear c h w arr a n t f

o r th e Pe ti ti o n e r ’ s v e h ic le d id n o t li s t it e ms s u c h a s a r e c e ip t, a n d
, th e ref ore, a mot ion to s up pr e ss the re c e ipt would h a ve be e n s uc c e ssf ul h a d it be e n f ile d b y Cou ns e l. F urthe rm or e , th e Pe tit ion e r c on te nd s that, ha d thi s r e c e ipt be e n s uc c e ssf

ull y su pp re sse d, he wo uld

no t hav e be e n co nv ic te d. Th e Sta te c ou nte rs that Co un se l w a s n ot i ne ff e c tiv e in this re g ardbe c aus e
ne ith e r h e no r the Pe tit ion e r w e re c on c e rn e d w ith the re c e ipt be c a use it was ir

re le va nt. Th e po stconviction court found:

Th e imp ort a n c e o f t h e M o n t g o m e r y W ar d r e c e i p t t ak e n f r o m t h e c ar w a s t h a t it

co n t ai n ed simil arities with a Montg omery Ward rec eipt found at the sc ene of the crime. In the State’s theory at trial, the Montg omery Wa rd rec eipt from the c ar would connec t the [P ]etit ioner to the Montg omery Ward rec eipt found at the scene.

. . . The Montgome ry Ward rec eipt from the vehicle had no signific ance i n i tself, unle s s c o n s id e r e d in r e lati o n to th e M o n tg o me r y Wa r d r e c e ip t f

o u n d a t th e s c e ne bearing the name Thompson. . . .

The Montg omery

Ward rec eipt found at the sc ene of the crime [not the one fo un d in the ve hic le ] wa s d ir e c tly a dd re sse d o n a

pp e a l. .

. . B a sic a lly

on dir e c t app e a l, the Appellate panel de termined that the M ontgome ry Ward rec eipt should not have be e n a d mi tt e d in to e v id e n c e

. . . a n d in d ir e c tl y f o u n d th a t th e M o n tg o me r y Ward

rec eipt found in the vehic le did not t end to authenticate the Montg omery Ward

rec eipt found at the sce ne. . . . Notwithstanding , the er ror of the trial court, the Appellate panel found the admission of the Montgome ry Ward rec eipt found at the

scene to be harmless error bey ond a re asonable doubt. . . . .-20-

Th e po st- c on vic tio n c ou rt c on c lud e d th a t Co un se l w a s no t in e ff e c tiv e fo r f

a ili ng to m ov e to s up pr e ss the Montg omery

Ward rec eipt found in the Petitioner’s ca r, and, f urther, the Petiti o n er ha d not proved pr ejudice.

We conclude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s conclusion. The e vidence showed that Counsel and the Petitioner were not conce rned a bout the

re c e ipt fo un d in the Pe tit ion e r’ s v e hic le be c a us e it wa s “ ir re le va nt. ” Th e tw o w e re c on c e rn e d w ith other items found in the c ar, a nd Counsel filed a motion to suppress those items. Counsel’s theory inv olv e d s ho wi ng that th e re we re inn oc uo us ite ms i n th e c a r, inc lud ing a Mo ntg ome ry War d r e c e ipt

. This rec eipt then bec ame important only when the State use d it to tie the P etitioner t o the crime by showing that a similar re ceipt wa s found at the crime scene . We cannot judg e Counsel’s perf ormanc e in hindsig ht, but we must judg e it f rom Counsel’s perspe ctive at the time. Cooper, 849 S.W .2d at 746. Under these circ umstances, we cannot conclude that Counsel w as i n ef fe ct i v e for failing to file a motion to suppress the re ceipt found in the Petitioner’ s car

. b. Motion to Sup press F ruits of Arrest

Th e Pe ti t i o n e r c o n t e n d s t h a t C o u n s e l w a s i n e f f e c t i v e w h e n h e f

a i l e d t o f i l e a m o t ion to

c ha lle ng e the Pe tit ion e r’ s a rr e st a ndto s up pr e ss e vid e nc e ob ta ine d as a re su lt of the arr e st, be c aus e the ar rest wa rra nt, by which the Petitioner wa s arr ested, wa s issued without probable ca use. The State asserts that the Petiti oner ha s failed to demonstrate that hi s arr est was illeg al, and, ther efor e, Cou ns e l w a s n ot i ne ff

e c tiv e fo r f

a ili ng to f ile a mot ionto s up pr e ss the Pe tit ion e r’ s a rr e st w arr a nt. T h e p o s t -c o n v i ct i o n co u rt s t at ed t h e f o l l o wi n g:

The [ P ]et iti on e r s a y s th a t a ft e r the ro bb e ry a ndkid na

p[p]i ng in King sp ort, S u l l i v a n C o u n t y, T e n n e s s e e , h e w a s arr e s t e d i n a n o t h e r ’ s h o m e i n J o h n s o n C i t y, Washington County
, Tenne ssee.

. . . [The Petiti oner] say s they just came in and g ot him. The [P ]etit ioner say s things were ta ken fr om his person, but does not describe

a nythi ng inc ulp a tory or

a nythi ng take n f

ro m hi s p e rs on . F urthe r, the [P]et iti on e r d id

no t e sta bli sh his sta nd ing to o bje c t.

I n any case , the State offe red te stimony at t he P ost Conviction hearing of the office rs that made the arr est.

. . . The State’s witness at the Post Conviction hearing [Moffitt and L ight] indicated that they wer e aw are that an ar

rest wa rra nt was issued. They believed the [P etitioner] wa s at a particular home in Johnson C ity [W ashing ton County , Tenne ssee]. They went to the home a nd the owner stated that [the Petitioner] was not there. The police asked the homeowner to call if [the Petiti oner] showed up later.

. . . L ater , the homeowner called the police to te l l t h em t h at t he [P etitioner] had showed up at her house. . . . The Kingsport Poli ce a ccompa nied by J ohnson CityPolice Offic ers r eturne d to the home of the third party and knocke d on th e d o o r

. T h e [P e t i t i o n e r ] w a s s e e n a tt h e h o u s e a n d w a s arr e s t e d a n d t ak e n int o
c u s t o d y.-21- Th e Cou rt

c re dit s th e te sti mon y

of th e of

fi c e rs te sti fying a t th e Pos t Conviction hearing

. . . . The alleg ation that orig inal defe nse counse l was ineff ective fo r n ot atta c kin g the arr e st i s w ith ou t me ri t.

We c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate a g a ins t th e po st- c on vic tio n c ou rt ’s fi nd ing s. Pr ior to c los ing a

rg ume nts , th e Pe tit ion e r ask ed Co un sel t o r a ise the iss ue of a n il le g a l arr e st. Counsel specifica lly

stated that he did not think that there wa s anything illeg al about the Petitioner’s

arr est. The Petitioner be ars the bur den of pr oving that Counsel was ineffec tive. Our re view of the

rec ord su pports the post-conviction court’s finding that Counsel’s perf ormanc e in this reg ard w as within the r ang e of competenc e demande d of attorne y s in criminal case s. See B axter, 523 S.W .2d at 936. Fur

ther, to show pre

judice, the Petitioner must prove that the outcome of the trial would be differ ent. Acc ording ly
, he must show that this motion would have been g rante d. Fr om the evidenc e befor e us, w e cannot conclude that a motion to suppress the arr est war rant would ha ve bee n
succe ssful, and, there fore , the Petitioner can n o t m ee t the pre judice prong of our a naly sis. The Petitioner is not entitl ed to re lief base d upon this iss ue.

c . M ot ion forCha nge of V e nue
The Petitioner alleg es that Counsel was inef fec tive for f

ailing to move for a chang e of ve nue. He asserts t hat a chang e of venue was necessary due to pretrial publicity . The State re sponds that the Petitioner has fa iled to s h o w t hat Counsel was inef fec tiveness or that the Petitioner wa s prejudice d by C o u n s el ’s per formanc e. Reg arding this iss ue, the post-c onviction court found a s fo llo ws :

Th e [ P] etitioner alleg es his orig inal trial counsel wa s ineffe ctive for not seeking a chang e of venue. .

. . The [P] etitioner off ere d newspa

per c lippings of ne ws sto ri e s f ro m th e Ki ng sp ort T im es News, a ne ws pa pe r o f g e ne ra l c ir c ulatio n in Sulli van County , Tenne ssee. . . . The voir dire c onducted at the orig inal trial indicated t h at t h e p ro s p ec t i v e j u ro rs we re q u es t i o n ed i n s o m e d et ai l ab o u tan y p ri o r k n o wl ed ge of the a lleg ations . . . . Upon a re view of the trial transc ript . . . evidenc e it appea rs that the [P etitioner] had a fa ir jury and that steps we re taken to insure that the jury was not tainted by

outside influence s such as ne ws stories. . . . This issue is without

me ri t.
“[V]enue may

be ch an ged

. . . i f it appea rs to the court that, due to undue excitement ag ainst the de fe n d a n ti n t h e c o u n t y

w h e r e t h e o f

f e n s e w a s c o m m i t t e d o r

a n y o t h e r c a u s e , a f a i r tr i a l pr ob a bly could not be had.” Tenn. R. Crim. P. 21(a). The ultimate test is whe ther the jurors who actua lly sat and re ndere d verdic ts were prejudice d by the pre trial publicity . State v. Gar land, 617 S.W.2d 176, 187 (Tenn. Crim. App. 1981) . Prejudice w ill not be presumed by a mer e showing that there was considera ble pre trial publicity

. Dobbert v. Florida, 432 U .S. 282, 303 (1977); State v. Ky g er, 787 S.W. 2 d 1 3
, 1 9 ( T e n n

. C r i m

. A p p

. 1 9 8 9 )

. R e l e v a n tf a c t o r s t o c o n s i d e r

i n d e t e r m i n i n g w h e t h e r

to g rant a motion for a chang e of ve nue include:-22- 1

. N a t u r e , e x t e n t , a n d t i m i n g o f p r e

- tr i a l p u b l i c i t y. 2

. N a t u r e o f

p u b l i c i t y a s f

a i r o r i n f l a m m a t o r y. 3

. T h e p ar t i c u l ar

c o n t e n to f

t h e p u b l i c i t y. 4. The de g ree to which the publicity complained of

has permeated the are a from which the venire is drawn. 5. The de g ree to which the publicity circ ulated outside t he area from which the venire is drawn. 6. Th e tim e e laps e d f

ro m th e re le a se of

the pu bli c ity

un til the tr ia l. 7

. T h e d e g r e e o f

c ar e e x e r c i s e d i n t h e s e l e c t i o n o f t h e j u r y. 8

. T h e e a s e o r

d i f f i c u l t y i n s e l e c t i n g t h e j u r y. 9. The veniremen’ s familiarity with the publicity

and its eff

ect, if any , upon them as shown throug h their answe rs on voir dire. 10 . T he de fe nd a nt’ s u til iza tio n o f h is p e re mpt ory c ha lle ng e s. 11. The de fenda nt’s utiliz ation of his challeng es for cause

. 1 2

. T h e p ar t i c i p a t i o n b y p o l i c e o r b y p r o s e c u t i o n i n t h e r e l e a s e o f p u b l i c i t y. 13. The seve rity

of the off ense c harg ed. 14. T he abs e nc e or

pr e se nc e of

thr e a ts, de mon str a tio ns or oth e r h os til ity

a g a ins t th e de fe nd a nt. 15. Siz e of the are a fr om which the venir e is draw n. 16 . A ff ida vit s, he ars a y , o r o pin ionte sti mon y of wi tne sse s. 1 7

. N a t u r e o f

t h e v e r d i c tr e t u r n e d b y t h e tr i a l j u r y.

State v. Hoover , 594 S.W .2d 743, 746 (Tenn. Crim. App. 1979)

.

I n our view, the Petitioner has fai l ed to present specific evidenc e of any prejudice to the verdic t. Counsel stated that he wa s awa re of the newspa

per a rticles about the crime but he did not

rec all any of the juror s having knowledg e of the cas e. He re al ized that, if he filed a motion for

c ha ng e of ve nu e , th e jury

po ol m a y be ta int e d, a nd , it

wa s to the Pe tit ion e r’ s a dv antag e to n ot f ile such a motion bec ause the re w ere two y ear s for people “ to forg et the incident.” Counsel thought that the issue would be br oug ht up ag ain if he filed a motion to chang e venue . Further, Counsel had no ind ic a tio n th a t th e g randjury ha d b e e n taint e d b y

ne ws pa pe r a rt ic le s.

We c onclude that Counsel’s decision not to reque st a chang e of venue “fa lls withi n the wide

rang e of reas on able pr of

e ssi on a l a ssi stanc e .” B urns , 6 S.W. 3da t 46 2. Cou ns e l ma de a str a te g ic decision to not file a motion to chang e venue in order to minimiz e the possibilityof jurors r eca lling

a ny pu bli c ity abo ut the c a se . F urthe r, the Pe tit ion e r p re se nte d n o e vid e nc e that Co un sel fai le d to consider those fac tors listed in Hoover

. Moreove r, even if we we re to find that Counsel er red, the Pe tit ion e r h a s p re se nte d n o e vid e nc e of pr e jud ic e or that the ou tc ome of the tr ia l w ou ld b e dif fe re nt. Acc ording ly , we c onclude that the Petitioner is not entitled to post-conviction re lief on this issue.

d. Sp eedy Trial Motion

T h e Pe ti ti o n e r

n e xt c o n te n d s th a t C o u n s e l w a s in e f f e c ti v e f o r f a il in g to f il e a mo ti o n for a-23-

speedy trial. The State a sserts that by ag ree ing to c ontinuances that benef itted his case , the Petitioner g a ve up his ri g ht t o a

sp e e dy tr ia l. The post-conviction court did not specific ally addre ss this i ssue, but it conclude d that the Petitioner “is not entitled to Post Conviction Relief upon any issue, or any of his te sti mon y , o r any

c omb inatio n o f i ssu e s, or up on his c on c lusions that he is e nti tle d to Pos t Conviction Relief

. . . .” Further, we note that the post-conviction court stated the following about the c re dib ili ty

of wi tne sse s:

I n r e a c hin g thi s o p i n i o n , th eC o u r t o b s e rv e d the [P]et iti on e r’ s d e me a no r w hil e testify ing, his own state ments t h at he put thi ng s in the Post C onviction pleading under oath without any

basis for the a lleg ation, etc. The Court finds that the [P]e ti ti o n e r h a s n o c r e d ib il it y b e f o r e th is Co u r t. T h e Co u r t f in d s th a t o r ig in al trial

c ou ns e l is fu lly

e nti tle d to be lie f andis c re dib le in h is t e sti mon y be fo re thi s Co urt.

The Six th Amendment to the United States Constitut ion provi d es that “in a ll criminal p r o s e c u t i o n s , t h e a c c u s e d s h a l l e n j o y t h e r i g h tt o a s p e e d y a n d p u b l i c tr i a l

. ” U

. S

. C o n s t

. a m e n d

. V I; see St ate v. S im mo n s , 5 4 S. W. 3 d 7 5 5
, 7 5 8 ( T e n n

. 2 0 0 1 )

. Si mi la r ly
, th e T e n n e s s e e Co n s ti tu tion provides that “in a ll criminal prosec utions, the acc used hath the right to . . . a spe edy public trial.” Tenn. Const. Art. I , § 9; see Simmons, 54 S .W.3d at 7 5 8 ; see a lso Tenn. Code Ann. § 40-14- 101 (2003) ( s tati n g “ I n a ll c r im in a l p r o s e c u ti o n s , th e a c c u s e d is e n ti tl e d to a s p e e d y tria l

. . . .”). The speedy trial g uara ntee is de signe d to protect the a ccuse d from oppre ssive pre- trial incar cer ation, the

a nxie ty a ndc on c e rn du e to unr e so lve d crimi na l cha rg e s, a nd the ri sk tha

t th e a c c us e d’ s d e fe ns e wi ll be impaire d by

dimming memories or

lost evidence . Simm ons, 54 S.W .3d at 758; see D og g ett v. Uni te d St a te s , 5 0 5 U

. S. 6 4 7
, 6 5 4 ( 1 9 9 2 ) ; S tate v

. U tl e y , 9 5 6 S. W. 2 d 4 8 9
, 4 9 2 ( T e n n

. 1 9 9 7 )

. The United States Supreme Court enunc iated a f our-f actor bal an ci ng test for c ourts to apply when evaluating a

claim that the acc used wa s denied a speedy trial: “(1) the leng th of the dela y ; (2) the

rea son for the de lay ; (3) the defe ndant’s assertion of t he right; and (4) the pre judice suff

ere d by the defe ndant from the de lay .” Simmons, 54 S .W.3d at 759 (citing Ba rker v. Wingo, 407 U.S. 514, 530 (1972))

. At the post-conviction hea ring , testimonywas pre sented that, during the Petit i o n er’ s case , there wer e seve ra l conti nuance s, and the de fense asked f or some of the se continuanc es. The Petitioner’s trial was initially set for January 18, 2000, but he and the Petitioner a g ree d to ask for a continuance in order to g et evidence from the TBI and FBI that would help t he Petitioner’s c ase. The trial was moved to July17, 2000, and the State wa s g rante d a continuanc e, althoug h Counsel objected, be cause one of the officers would be unavailable to testify at t rial. The trial was then se t fo r S e pte mbe r 1 8, 20 00 , w he n, a g a in, Cou ns e l f ile d a se c on d moti on fo r a

c on tin ua nc e be c a us e so me expert witnesses could not be prese nt f or trial. The State proposed a stipulation as to the testim ony of the e xpe rt s, in o rd e r t o p ro c e e d to tr ia l, bu t the Pe tit ion e r w a nte d th e e xpe rt s to te sti fy in c ou rt

. The trial wa s then moved to Fe bruary 21, 2001,and, prior to t h at d at e, C ounsel learned of O ffice r Osterman’ s statement. Counsel and the Pe t i t i o n er d i scussed this and dec ided that it would be advanta g eous to reque st another c ontinuance in or der to fully investigate this ne w information. The trial was se t for Jul y

23, 2001, and it pr ocee ded on that date. We c onclude that the evidenc e does not preponde rate ag ainst the pos t-conviction court’s conclusion that the Petitioner wa s not denied-24-

eff ective a ssistance of his c ounsel in this instance. We c annot conclude that the Petitioner has met his burden of showing that Counsel’s perf ormanc e wa s d efic ient. Further, he has not proven prejudice

.

e. Motion to Hire a P rivate Investigator

The P etitioner asserts that Counsel was ineffec tive beca use he f ailed to make a

motion for

a p r iv a te in v e s ti g a to r

to in v e s ti g a te th eP e ti ti o n e r ’ s c a s e , e s p e c ia ll y b e c a u s e th e c a s e w a s s o c o mp le x. The State c ontends that Counsel was not i neff ective f or fa iling to hire a

private inve stigator, and, further , the Petitioner has not established how a private inve stigator would have helped his ca se. The post-conviction court found, summarily , that the Petitioner was not entitled to relief on this issue.

Coun s e l te s ti f

ie d th a t h e n e v e r th o u g h t o f h irin g a p r iv a te in v e s ti g a to r , b u t he spent approx imately

149 hours on the ca se, he w ent to the crime scene and surr ounding a rea , and he int e rv ie we d a ll o f the of

fi c e rs a nd wi tne sse s. F urthe r, Cou ns e l soug ht an d wa s g ive n a si x-mo nth continuance in o rd er t o i n v est igate a state ment hear d by Offic er O sterman. We conc lude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s find i n g that Counsel was not ineffe ctive. F urther, the Petitioner has not demonstrated how he wa s p rejudice d by Counsel’s alleg ed failure to se ek the servic es of a private inve stigator. Ther efor e, the Petitioner is not entitled to relief on this issue.

2. Investigation

Th e Pe tit ion e r n e xt co nte nd s th a t Cou ns e l w a s in e ff e c tiv e be c a us e he faile d to a de qu a te ly inv es t igate this case by : (1) not conduc ting tests on the sc rew driver; ( 2) not investigating lost and

e xc u l p a t o r y

e v i d e n c e ; a n d ( 3 ) n o ti n v e s t i g a t i n g w h e t h e r t h e g r a n d j u r y

f o r e m a n w a s p r op e rl y authorized.

a. Sc r e wdri ve rTe st

The Petitioner conte nds that Counsel w as ineffe ctive beca use he failed to pe rform te sts on the scre wdriver used to pr event the victim f rom leaving the bathroom to dete rmine if the sc rew driver

a c tua lly pr e ve nte d the op e nin g of

the bathr oo m do or . T he Sta te a sse rt s th a t Co un se l ma de a str a te g ic decision t o not perf

orm such t ests on the s cre wdriver
, and, further, the Petit ioner ha s not established p re j u d i ce

. T h e p o s t -c o n v i ct i o n co u rt s t at ed t h e f o l l o wi n g:
[T]he [P]et iti on e r s a y s th a t . . . [C]ou ns e l sh ou ld h a ve pe rf orme d a te st or ha d a te st perf ormed to dete rmine if a scre wdriver place d in a bathroom door at the scene of the crime w ould have actually preve nted the victim from lea ving the bathroom whe re the [P etiti o n er ] p l ace d her ( victim) after beating her se nseless, dra g g ing he r blee ding body to the bathroom, putting he r ins i d e an d putting a sc rew driver in be tween the door and the door jam.-25- The p o li c e th a t a

rr iv e d a t th e s c e n e o f

th e c r im e o b s e r v e d a

s c r e w d r iv er jammed into the cra ck betwe en the door and the jam. The theory

at trial wa s that the

scre wdriver

was plac ed in the door jam to preve nt the victim from esca ping he r
c on fi ne me nt.

At trial, it was established that the vic tim locked the door from the inside and thi s w a s c omm e nte d o n in the op ini on on dir e c t app e a l.

Th e [P]et iti on e r i n a nti c ipatio n of the Pos t Conv ic tio n he ari ng atte mpt e d to establish by

test that the door could be opened notwithstanding the scre wdriver being place d in the door jam and of fer ed witne sses to say

the door c ould be opene d notwithstanding the sc rew driver in the door jam. The [P] etitioner off ere d no exacting pr oof fr om a re cre ation standpoint as to the condition of the scre wdriver

on the nig ht of the robbe ry

except as to location.

. . . .

I n the ca se, ther e i s no question . . . that the victim was place d in the bathr oo m so de te c tio n o f the c ri me c ou ld b e a vo ide d a nd to p re ve nt t he

. . . vic tim from summonsing he lp and that the robbe r placed t h e s cr ewdriver in the door ja m from the outside in an attempt to keep he r in the bathroom a nd that the place ment of the injured victim place d [t he victim] i n gre at er dang er. Further, the robbery took place at the che ck-in c ounter, not the bathroom. The victim was only place d in the bathroom af

ter she w as seriouslyinjured blee ding and beate n senseless. . . .

Th e a lle g a tio n th a t [C]ou ns e l w a s in e ff e c tiv e be c a us e he faile d to pe rf orm a te st o n th e do or

is n ot p ro ve n to be c le ar andc on vin c ing e vid e nc e . F urth er, this is a pre viouslydecide d issue.

Al so , th e pe rs on s w ho pe rf orme d th e te st i n a nti c ipatio n o f the Pos t Conviction hearing appea red to be healthy

men, not a person of elde rly y ear s that had been b ea t en s en seless. I

rre g ardle ss of whethe r or not the sc rew driver w ould have preve nted the victim’s esc ape f rom the bathroom, there is absolutely no question that the victim was plac ed in a much g reater da ng er. I n h er condition to even open a closed door w ould have be en an or deal or impossibl e. When the police a rrived at the

scene , she wa s in such bad condition that they thought she was de ad.

We conclude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s finding s. I n Counsel’s investigation, he inspected the door at the crime scene, and he spoke with the police off icer s that wer e present at the s cene

. Counsel’s strateg y was to attack the State’s proof, and to arg ue in both opening and closing arg ument that the State had n o t proven that the scre wdriver preve nted the door f

rom o p en i ng . Furthermore , the State’s evide nce at trial showed that the door was locke d from the insi de of the bathroom. Counsel’s per formanc e, which did not include-26-

c on du c tin g ind e pe nd e nt t e sts on the do or , d id no t fall be low a n o bje c t st a nd ardof re a so na ble ne ss. Furthermore , even w ere we to c onclude otherwise, the Petitioner has not proven pre judice. We, as didth e p o s t- c o n v ic ti o n c o u r t, n o te th a t th e te s ts p e r f o r me d o n th e d o o r

f o r th e p o s t- c o n v iction hearing w ere n o t conducte d under the same c onditions t hat exist ed at the time of the crime. Specifica lly , the per sons who conducte d the test wer e not in the s ame phy sical or mental s tate as the victim. Further, as we said previously
, the proof at t rial was that the bathroom door w as locke d form the inside and not that the scr ewdriver a lone locke d t h e d o o r. Under these c ircumstance s, we conclude that the Petitioner has not prove n prejudice and is not entitled to relief on this issue.

b. Excul patory Evidence

Th e Pe tit ion e r ne xt c on te nd s that Co un se l w a s in e ff e c tiv e fo r f

a ili ng to p ro pe rl y

inv e sti g a te the issue of whether the State fulfilled its duty to provide exculpatory

evidenc e. Th e Sta te a sse rt s that Counsel was not ine ffe ctive, and, f urther, be cause the evidenc e wa s disclosed, the Petitioner has not shown prejudice . The post-c onviction court found that this issue was pr eviously decide d on direc t appea l. Furthe r, the post-c onviction court stated the g ener al conclusion that it “finds that no prejudice in a Po s t C o n v i ct i o n sense f ell upon the [P etitioner] in reg ards to his counsel’ s conduct

u p o n d i re ct ap p ea l

. ” I n ad d re s s i n g t h i s i s s u e o n d i re ct ap p ea l
, t h i s C o u rt co n cl u d ed t h e f o l l o wi n g:

I n this ins t an ce , t h e i nformation does not fa ll within t he rule of B rady beca use the inf orma tio n, a lth ou g h d e la y e d w a s d isc los e d. B ra dy on ly app lie s to a

c omp le te failure to disclose ex culpatory information and doe s not apply to delay ed disclosure unless the delay

itself cause s prejudice . Be cause disclosure w as delay ed and not denied, the [Petitioner] m ust demonstrate prejudice in order to qualify for r elief. The tr ia l c ou rt g rante d a

le ng thy c on tin ua nc e so that th e [Pet iti on e r] c ou ld atte mpt to loc a te the ind ivi du a l who ma de the c omm e nt. Al tho ug h the [Pet iti on e r] w a s u na ble to f indthe po te nti a l w itn e ss, the re c or d d oe s n ot e sta bli sh that th e ina

bil ity to l oc a te the wi tne ss w a s th e re su lt o f the de la y e d d isc los ur e . O ff ic e r O ste rm a n w a s u na

ble to provide a description, other than the fact that he was white, making it unlikelythat

a n e arl ie r d isc los ur e wo uldha ve a s s i s t e d th e[P e tit ion e r] i n id e nti fying the ind ivi du a l. I n our view, the [P etitioner] has failed to demonstrate that he wa s prejudice d by the de la y e d d isc los ur e of

thi s st a te me nt.
Thompson, 2003 WL1202979, at *13 (c itations omi tted).

We conclude t

h at t h e Petitioner has not shown that Counsel’s failure to investigate the State’s compliance with its dut y to provide exculpatory

evidenc e fe l l o u t side the ra ng e of c ompetence demande d of attorne y s in criminal case s. This Court determined that the e vidence , althoug h delay ed,

was disclosed to Counsel, and the Petitioner wa s not able to show, on direc t appea l, that this delay

cause d him prejudice. I d. Further, Counsel interviewed the offic ers at the scene , including O ffice r Osterman, and he wa s not told of a third-party statement at that time. When Counsel learne d of the

s tate me n t, h e p r o c e e d e d to in v e s ti g a te a n d h e f u r th e r q u e s ti o n e d O f

f ic e r O s te r man

. We c a nnot conclude that the P etitioner has met his burden of showing how C ounsel’s performanc e pre judiced-27-

him. He is, theref

ore, not e ntitled to relief on this issue.

c. G rand Jury For em an

The Petitioner conte nds that Counsel was ineff ective be causehe failed to in v es tigate and determine whether

the g rand jury

fore man was authorized to serve b y law. Specif

ically , the Petitioner raises the issue beca use the g rand jury fore man was the sa me per son who voted to indict the Petitioner in a prior matter or matter s. The post-convic tion court stated:

[The] Petitioner say s that his orig inal attorney was ineffec tive for not attacking the lon g te nu re of

the Gr a ndJury

F or e ma n, Art Sa ly e rs

. . . . Th e [P]et iti on er, in h is testimony , seems to have conclude d that Art S aly ers had serve d too long. . . . Ba sed up on the e vid e nc e pr e se nte d at he ari ng , th is i ssu e is t ota lly wi tho ut m e ri t.

The Petitioner admits in his brief that this C ourt has pre viouslydecide d that a g rand jury fore person
may s e r v e lo n g e r th a n th e s tatu to r y te r m o f tw o y e ar s

. Se e N e ls o n v

. St a te , 4 9 9 S. W. 2 d 956, 956 (Tenn. Crim. App. 1972) (holding “[w]e find no authority holding a nd can think of no valid reason why a g rand jury

fore man appointed for two y ear s under [t he statute] is disqualified to serve longe r either by rea ppointment or holding over.”)

. Acc ording ly
, we see no valid arg ument that the g rand jury fo re ma n w a s impr op e rl y

a uth orize d o r that Co un se l w a s in e ff e c tiv e . T his iss ue is w ith ou t me ri t.

3. Tr ial and Se nt e nc ing

Th e Pe tit ion e r n e xt co nte nd s th a t Co un se l w a s in e ff e ctive wh e n Co un se l r e pr e se nte d h im during trial and at sentenc ing. Specifica lly
, he asserts that Counsel ineffe ctively : (1) addr essed a n ey ewitness stateme nt; (2) fa iled to object to a jury instruction conce rning his fine; and (3) a llowed the trial court to deny

the Petitioner’s rig ht to allocution at the sentenc ing he aring

.

a. Wit ne ss S ta te m e nt

The Petitioner contends that Counsel was ineffec tive by failing to mention, during opening arg uments, a witness’ state ment hear d by Offic er O ste rma

no r to introduce e vidence of this statement during trial. A witness told Of fice r Osterman that another bla ck male, not the Petitioner, w as at the crime sc ene prior t o t h e co mmissi on of the c rime, and the Petitioner contends that Counsel was ineffe ctive bec ause the jury never hear d this statement. The State co u n t er s t hat Counsel was not ineffe ctive for

failing to introduce the state ment, and, further, the Petitioner ha s not demonstrated that he wa s pre

jud ic e d be c a us e , during tr ia l, the tr ia l c ou rt ru le d th a t th is s ta te me nt w a s in a dmi ssi ble hear say and this Court affirme d that ruling on appea l. The post-convic tion court conc luded that there

wa s n o me ri t to the Pe tit ion e r’ s c la im.

The e vidence prese nted at the post-c onviction hearing show ed that Counsel lear ned about this statement late in his investigation of this ca se, and he soug ht a con t i n u an ce t o i nvestig ate the statement further a nd attempt to locate the w itness. Counsel c ould not locate this witness, and he-28-

did not mention the s tatement in opening arg ument beca use he anticipated that the tria l court mig ht rule that it wa s i n ad m i s s i b le hea rsay . Counsel expl ained to the Petitioner that he felt that it was imp ro pe r to me nti on the state me nt i n o pe nin g arg ume nt b e fo re the tr ia l c ou rt ha d th e op po rtun ity

to decide whether

this statement was hea

rsay . The trial c ourt did, in fac t, rule that this statement wa s inadmissible, and Counsel raised this issue on appea l. This Court aff irmed the trial c ourt’s ruling about t h e s tate me n t. T h o mp s o n , 2 0 0 3 WL 1 2 0 2 9 7 9
, a t * 1 4

. We f a il to s e e h o w Counse l’s repr esentation f

ell below an objective standard of rea sonablene ss. Further, the Petitioner has in no way shown prejudice in this reg ard. The Petitioner is not entitl ed to re lief on this issue.

b. J ur y I nst r uc ti on R e ga r ding F ine

The Petitioner next asserts that Counsel was in ef fe ct i v e for

failing to object to the trial

c ou rt ’s ins truc tio n, prior

to d e lib e ratio ns , re g ard ing the a mou nt o f f ine to b e imp os e d. Th e State

c on te nd s th a t th e ins truc tio n w a s p ro pe r, a nd , th e re fo re , Co un se l w a s n ot i ne ff e c tiv e . T he po stco n v i ct i o n co u rt h el d t h e f o l l o wi n g:

Ea c h of the c ri me s the [P]et iti on e r wa s con vic te d of ca rrie d fin e s of in e xce ss of fifty dollars ($50). T he Te nnessee Constit ution requires that any fine in excess of fifty dollars ($50) be set by

a jury unless the def

endant voluntarily

ag ree s otherwise. Tenne ssee Constit ution, Article 6, sec 14. State of Tenne ssee v. J o h n T homas Sc op e s, 15 4 T e nn . 1 05 , 2 89 SW 36 3, 367 (Tenn . 1 92 6)

. . . . Th is i ssu e is t ota lly wi tho ut m e ri t.

The trial c ourt’s instruction to the jury reg arding the fi nes to be imposed wa s proper . The Peti ti o n e r f

a il e d to p r o v e th a t Co u n s e l w a s in e f f e c ti v e f o r n o t o b je c ti n g to th e tria l c ourt’s instruction. Moreover , even if we were to find that Counsel err ed, the Petitioner has fa iled to show

a re asonable probability

of reasonable doubt “suff icient t o undermine c onfidenc e in the outcome.” Str ic kland , 4 66 U. S. at 69 4. Acco rdi ng ly , w e c on c lud e that th e Pe tit ion e r i s n ot e nti tle d to po stconviction re lief on this issue.

c. Allocution

The Pe ti ti o n e r

n e xt a s s e r ts th a t C o u n s e l w a s in e f f e c ti v e f o r f a il in g to r e q u e s t th a t th e tr ial

co u rt al l o w t h e P et i t i o n ert h e r i gh to f a l l o cu t i o n at t h e se n t en ci n g h ea ri n g. The State c ontends that the Petitioner chose not to spea k at the sente ncing hearing, and, t h er ef ore, Counsel wa s not ine ff e c tiv e . F urthe r, the Sta te a sse rt s th a t th e Pe ti ti on er ha s n ot s ho wn pr e jud ic e . T he po stco n v i ct i o n co u rt re as o n ed t h e f o l l o wi n g:

At the s en t encing he aring , the [P etitioner] and his attorney did not ask the Court that the [P etitioner] be allowed to make an uncr oss-examined statement prior to sentencing . . . . I n death pe nalty case s tried by

a jury
, case law has indicated that there is not [a] constitutional rig ht

. . . of All ocution, but in some rece nt case s, it has b ee n h el d t h a t t h e r e i s a r i gh to f A l l o cu t i o n wh er e t h e j u d ge i s co n d u ct i n g a-29-

sentenc ing he aring

. . . . The [P ]etit ioner althoug h stating that he did not a sk to make a stateme nt at sentenc ing, the trial judg e had a duty t o i n fo rm him of his right of Allocution. . . . The [P] etitioner say s he was prejudice d by not be ing able to point out his opinion that the ca se wa s a close one (suffic iency of the e vidence ), various leg al

err ors, and that the jury or the Court wa s misled by the testimon y of Off

icer Broo ks hi re (s e e min g ly

c on c e rn ing the sc re wd ri ve r the ory ).

. . . A ssu min g it i s require d that the t rial court point out the rig ht of Allocution, the thing the [P etitioner] wanted to sa y

would go to a Motion for Ne w Trial, to wit: the suffic iency of the

e vid e nc e , A nth on y

iss ue , e tc . th a t w e re raise d o n a pp e a l.

Further, if a n objection is not made at trial, the issue is waived. . . . Also, the [P ]etit ioner ha s not established prejudice . This i s s u e is without m erit and no prejudice is shown.

Allocution has been define d “as the formality of the c ourt’s inquiry

of a c onvicted def

endant

a s to wh e the r h e ha s a ny le g a l c a us e to sh ow wh y jud g me nt s ho uldno t be pr on ou nc e d a g a ins t hi m on the ver dict of conv i ct i o n

. ” State v. Stephenson, 878 S.W.2d 530, 551 (Tenn. 1994) ( citing B LACK ’ S LAW D I C TI ONAR Y 76 (6th ed. 1990)) (footnote omitted). I t is “an unsworn state ment from

a c o n v i c t e d d e f

e n d a n tt o t h e s e n t e n c i n g j u d g e o r j u r y i n w h i c h t h e d e f

e n d a n tc a n a s k

f o r m e r c y, explain his or her

conduct, a

pologize fo r the c rime, or sa y anything e lse in an ef

fort to lessen the i m pending sentenc e. This statement is not subject to cross- examination.” B LACK ’ S LAW D I C TI ONAR Y 75 (7th ed. 1999); se e also United States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). Tenne ssee Code A nnotated Section 40-35-210( b)(7) (2003) mandates that, in a non-c apital ca se, a defe ndant be a llowed allocution bef ore a sentenc ing judg e or j u ry

. T h i s section provides, “ To de te rm ine the sp e c if

ic se nte nc e a nd the app ro pria te c omb inatio n of se nte nc ing a lte rn a tiv e s th a t sh a ll be imp os e d o n th e de fe nd a nt, the c ou rt sh a ll c on sid e r .

. . [a ]ny

state me nt the de fe nd a nt w ish e s to make in the de fenda nt’s own beha lf about sentenc ing.” Tenn. Code Ann. § 40- 35-210(b) (7). “ The trial judg e, in determining the a pprop ri at e sentence . . . sha ll consider, among sever al fa ctors, any statement the de fenda nt wishes to make in his own behalf about sentenc ing . . . .” Stephenson, 878 S.W .2d at 551.

Clearly , any

defe ndant’s rig ht to allocution is dependant on that def endant’ s desire to make

a statement. I n the ca se under submissi on, the evidenc e showe d that Counsel asked the Petitioner prior to s e nte nc ing wh e the r the Pe tit ion e r w a nte d to te sti fy on his ow n b e ha lf

or make a state me nt. After sentenc ing, the Petitioner mentioned to Counsel that the trial judge did not ask the Petitioner if he wanted to speak, a nd the Petitioner told Counsel that the trial judge ’s fa ilure g ave the Petitioner a g round for

appea l. Counsel ex plained to t he Petitioner at that time that the Petitioner had e very rig ht to speak but ha d chosen not to do so. The Petitioner chose not to execute his rig ht to allocution. The Petitioner has f

ailed to prove that Counsel was ineff ective, and he has failed to pr ove how he was pre judiced. Ac cording ly
, we conclude that the P etitioner is not entitled to relief on this issue.-30- 3. On App eal

T h e Pe ti ti o n e r

a s s e r ts th a t Co u n s e l w a s in e f f e c ti v e w h e n h e r e p r e s e n te d h im o n ap p e a l. We employ the same two- prong standard that is used i n considering claims of inef fec tive assistance of tri al co u n s el t o ev al u at e a l l ega t i o n s o f i n ef fe ct i v e a s s i s t an ce o f a p p el l at e c o u n s el

. S ee , e. g. Porterfie ld v. State, 897 S.W .2d 672, 677-78 (Tenn. 1995). Ty pically , a dec ision reg arding which issues should be raised on appea l is one that is left t o the professional judgme nt and sound discre tion of appe llate counse l. Cooper v. State, 849 S.W .2d 744, 747 (Tenn. 1993); Porterfie ld, 897 S.W .2d at 678.

a. Response Brief Regarding Fac tual Misstatem ents

The Peti t ioner a sserts that Counsel was inef fec tive for f

ailing to a ddress fa ctual misstatements in the St ate’ s brief. Spe c if ic a lly
, he state s that he pr e pa re d a brie f a dd re ssi ng the se issues, delivere d the brief to Counsel, but Counsel failed to file the brief . The State c ontends that Counsel and the Petitioner discussed t he is sues t o be raised on direc t appea l, and those issues wer e addre ssed in Counsel’s brief. T here fore , The State a sserts that the Petitioner has n ot shown how Counsel was ineff

ective, and, further , he has not shown pr ejudice. T he p o s t-conviction court opined:

As a g e ne ra l sta te me nt o f l a w, app e llate c ou ns e l may e xer c ise re a so na

ble dis c re tio n a s to ho w [to ] pr e se nt a ca se on dir e c t app e a l and wh a t issu e s to pr e se nt. I ssues raise d or to be rais ed m ust be viewe d in light of the “ strateg ic value” of lim iti ng the nu mbe r o f a

rg ume nts pr e se nte d o n d ir e c t app e a l.

Her e th e C o u rt finds that no prejudice in a Post Convi ction sense f ell upon the [Pet iti on e r] i n r e g ard s to his [C]oun se l’ s c on du c t up on dir e c t app e a l.

The e vidence at the post-convic tion hearing proved that Counsel r eviewe d the Petitioner’s sup p le me n ta l b r ie f f

o r a n y is s u e s th a t h a d me r it

. F in d in g n o n e , Co u n s e l s u b mi tt e d a b r ie f based upon the issues that Counsel thought we re pr operly appea led. Counsel used his profe ssional judge ment and sound discre tion to determine the issues that had me rit. We conclude that Counsel’s perf ormanc e in this reg ard was within the rang e of compe tence demande d of attorne y s in criminal

ca s e s

. Se e B a xte r , 5 2 3 S. W. 2 d a t 9 3 6

. F u r th e r , th e Pe ti ti o n e r h a s f a il e d to p r o v e p r e

ju d ic e. Acc ording ly , the Petitioner is not entitled to post -convic tion relief on this issue.

b. In -Court Identification

Next, the Petit ioner c ontends that Counsel was ineffec tive for f ailing to a ddress the issue of

a n a lle g e dly

ill egal in- c ou rt

ide nti fi c a tio n o n d ir e c t app e a l. T he Pe tit ion e r a sse rt s th a t th e vic tim
, Huffma n, stat ed o n d i re ct ex amination that she found a rec eipt from Montg omery Ward that was signe d by “Jo J o Thompson.” During cros s -e x am i n ation, Huffma n admitted that the re ceipt wa s signe d by “J. Thomps on.” The Petitioner asserts that the ni ckname “Jo J o” was g iven t o him by the police depa

rtment, and it is not a nickname that he uses. He asserts that Counsel’s failure on a ppeal-31-

to challeng e the victim’s use of this nickname deprived him of a fair trial and calls into question the

re lia bil ity of the ou tc ome of

thi s c a se . T he Sta te a sse rt s th a t Co un se l w a s n ot i ne ff e c tiv e be c aus e he determined that this wa s not an issue that could prope rly be raised on appe al. The post-c onviction court found that this i ssue was w ithout merit.

Th e e vid e nc e a t the po st- c on vic tio n he ari ng pr ov e d tha t, wh e n H uf fm a n te sti fi e d, sh e sa id that she did not know the Def endant, had never seen him, a nd could not identify him as her attacker beca use her attacke r wore a ski mask. She also testified at tr i al t hat she c ould not identify the Def endant’ s signature. Counsel said that the P etitioner di d not like the ni ckname “Jo J o” and that the victim should onlyref er to him by

his give n name, Jo s ep h
, o r h i s n ickname Joe. Counsel testified that he discusse d this iss ue with the Petitioner, explaining to the Petitioner that while the victim r efe rre d to him usi ng the nickname , it did not affec t the Petitioner’s ca se. F urther, Counsel

s a i d t h a tw h e n h e c r o s s

- e xa m i n e d t h e v i c t i m , s h e t e s t i f i e d t h a tt h e r e c e i p tw a s s i g n e d b y “ J. T h o mp s o n .” Counse l d e te r mi n e d th a t th is is s u e w o u ldf a il if p u r s u e d in th e d ir e c t a

p p e a l. We conclude that the evidenc e does not pr ep o n derate ag ainst the post-conviction court’s finding that Cou ns e l’ s p e rf

orma nc e in this re g ard wa s with in the rang e of c omp e te nc e de ma nd e d of atto rn e y s in criminal ca ses. See Ba x ter, 523 S.W .2d at 936. Furthermore
, the Petitioner has not shown that he was pre judiced. The ref

ore, the Petitioner is not entitl ed to re lief on this issue.

c . P r e ju dic ial P hot og r aphs

The Petitioner asserts that Counsel was ineffec tive beca use he failed to demonstrate in the direc t a ppeal, by citing mor e cle arly

to the rec ord, that the introduction of pr ejudicial photog raphs

war rante d a new trial. Specifica lly , the Petitione r co n t en ds that Counsel did not pl ace particula r emphasis on enoug h citations to the re cord to c onvince the Court ofCriminal Appeals that the incourt identification was so unreliable that it wo u l d re q u i re a new tria l. The post-convic tion court addre ssed this issue in the context of Counsel’s g ener al appe llate per formanc e and stated:

As explained above, the Appellate Court c annot and a re not re quired to ente r a deta iled findin g o n every detail that might be contained in a n Appellate r ecor d. This doe s not me an they did not fairly revie w the re cord. . . . [A]ppellate counsel may exercise r easona

ble discret ion as to how [to] prese nt a ca se upon direc t appea l and what issues to present. I ssues raise d or to be raised must be viewed in lig ht of the

“ str a te g ic va lue ” of

lim iti ng the nu mbe r o f a rg ume nts pr e se nte d o n di rect app e a l. He re t he Court finds that no pre judice in a Post Conviction sense fell upon the [P etitioner] in reg ards to his counsel’ s conduct upon dire ct appe al.

We conclude that the evidenc e does not pre ponderate ag ainst the post-conviction court’s finding s. The Petitioner fails in his brief to state which pictures wer e prejudicia l, and why they wer e pr e jud ic ia l. Furthe r, thi s Co urt r e vie we d th is i ssu e on app e a l, f ind ing that th e re we re a de qu a te citations so as not to waive this issue. We cannot conc lude that the Petitio n er has met his burden of showing t hat Counsel’s per formanc e wa s deficie nt. Furthe r, bec ause w e addressed this issue on its merits on direct appe al, we f ail to see how the Petitioner was
, i n any way , prejudice d.-32-

Acc ording ly , we c onclude that the Petitioner is not entitled to post-conviction re lief on this issue.

d. Pe tition to Rehear

Next, the Petit ioner c o n t ends t hat Counsel was inef fec tive fo r f

a ili ng to f ile a pe tit ionto rehe ar in orde r for

this Court t o rec onsider it s opinion beca use of err oneous facts. See Te nn. R. App. P. 39(a)( 1). The State a sserts that Counsel w as not ine ffe ctive beca use he did not believe suf

ficient g rounds exist ed to file a Rule 39 petition to rehe ar, and, further , the Petitioner has not shown prejudice . The post-c onviction court stated:

[T]he iss ue c on c e rn ingfailu re to f ile a Rul e 39 mot ionis w ith ou t me ri t. I t is no t a routine duty

that Appellate Counsel f ile a Rule 39 motion. Obviously , the opinion

on dir e c t app e a l wa s d e ta ile d a ndba la nc e d. A r e a so na ble app e llate a tto rn e y

wo uld

no t be e xpe c te d to fi le a

Rul e 39 mot ionin s uc h c ir c ums ta nc e s.
The proof does not pre ponderate ag ainst this finding. We conc lude that the Petitioner has failed to mee t his burden of showing that Counsel’s perf ormanc e wa s deficie nt. Furthe r, he ha s not proven pr ejudice.

e. Withdrawal and Con trac t

F ina lly , th e Pe tit ion e r c on te nd s th a t Co un sel wa s in e ff e c tiv e be c a us e he faile d to tim e ly withdraw a s Counsel, and, as a related issue, he asserts that Counsel failed to adher e to the terms of

a c o n tra ct wi t h t h e P et i t i o n er

. T h e p o s t -c o n v i ct i o n co u rt co n cl u d ed t h e f o l l o wi n g:

Th e [P]et iti on e r s a y s his tr ia l a nd app e llate c ou ns e l did no t w ith dr a w t ime ly afte r the [P] etitioner had sue d him in a pro s e c i v i l a c t i o n

. . . . [ T h e ] P e t i t i o n e r s a ys he sued his [Counsel] , but [ Counsel] did not seek withdraw al bef ore the Tenne ssee Cou rt of Cr im in al A pp e a ls u nti l th e tim e ha d r un fo r f ili ng a Rul e 39 Mo tio n to Re h e ar

. T h e r e f

o r e , h e s a y s [C o u n s e l] w a s in e f f e c ti v e [o n ap p e a l]

. Evidently , the [P ]etit ioner wanted the Cour t o f Cr iminal Appe als to rehe ar the Br ady /Fer g uson issue and the e x ception to the hea rsay rule discussed by

J udg e Wade upon direc t appea l. . . . The Post Convi ction Court cannot instruct t h e Tennessee Court of Criminal Appeals to conduc t any hearing or require them to file additional minute findings of

law or f act. . . . On dir ect appea l, the Br ady /Fer g uson issue was hear d a n d b e c a me a

p o r ti o n o f

th e Crim in a l C o u r t o f

A p p e a ls o p in io n o n direc t

app e a l. Furthe r, a

Rul e 11 T. R.A .P. mot ionwa s f ile d w ith the Sup re me Cou rt

.

I t w ould be rank spe culation for this Court to hold that a pro s e Rul e 39 T. R. Ap p

. P

. m o t i o n wo u l d h av e a v ai l ed t h e [ P et i t i o n er ] an y t h i n g.-33- Th e iss ue that app e llate c ou ns e l w a s in e ff e c tiv e is t ota lly

wi tho ut m e ri t.

The e vidence at the post-convic tion hearing proved that the Petitioner filed multipl e motions wi th this Cou rt

a tte mpt ing to h a ve Cou ns e l r e mov e d, a ndwe de te rm ined tha t th e re wa s n ot j us t

cause for Counsel’s r emoval. The Peti t i o n er s o u ght to have Counsel re moved bec ause Counsel ref used to include, in the brie f prepare d by Counsel, all of t he is sues contained in the Petitioner’s pro

se su pp le me nta l bri e f. Th e Pe tit ion e r b e lie ve d th a t, h a d Co un se l w ith dr a wn , th e Pe tit ion e r w ou ld have be en able to succe ssfully file his pro se supplemental brief. Counsel said that he re viewed the Pe tit ion e r’ s pro se brie f fo r iss ue s tha t had me ri t, an d the re we re no ne . Co un se l de te rm ine d th a t hi s brief a ddresse d all the issues appr o p riate f or appe al. Counsel learned that the Petitioner ha d filed

a c ivi l la w s uit

a g a ins t Co un se l tw e lve da y s af te r or a l arg ume nt, a nd , o nc e he le arn e d o f this la ws uit
, he filed a motion to wit hdraw from the c ase. We c onclude that the Petitioner has failed to prove that Counsel’s perf

ormanc e fe ll below the standar d of reas o nably eff ective a ssistance. F urther, the Petitioner has fa i l ed to prove pre judice bec ause he failed to prove that any issues raised in the Petitioner’s supplemental brie f would have succe ssful on appea l. A ccor dingly , the Petitioner is not entitled to relief on this issue.

B. Other Issues

1. Issues Pr eviously Raised On Direc t Appeal

The ne x t two issues prese nted by the Petitioner are previously determined beca

use they wer e pr e vio us ly

raise d o n d ir e c t app e a l. Th e Pe tit ion e r c on te nd s that th e State int e nti on a lly or ne g lig e ntl y
cause d exculpatory

evidenc e to bec ome lost and unavailable to the Petitioner. The Petitioner alleg es that the tr ia l cou rt e rr e d in allo wi ng Cou ns e l only fo rt y min ute s for c los ing arg ume nts . T he po stco n v i ct i o n co u rt s t at ed t h e f o l l o wi n g:
The [P] etitioner in g reat pa r t b a s ic ally raised e x actly

the same issues that we re raised upon dir ect a

ppeal. Althoug h issues raised upon dire ct appe al ca nnot ag ain be raised in a

post conviction hearing .

. . the [P ]etit ioner took the position that may be if orig inal trial counsel ha d asked a few more questions he re or there or aske d them in a dif fe re nt l ig ht, the Ap pe llate Cou rt ma y ha ve ru le d d if

fe re ntl y on the iss ue s.

This Post Convic tion Court gave counsel some lee way in developing the theory
, but the end result of the t estimony was that the [P] etitioner wa s only stating

c on c lus ion s o r the orie s u po n is su e s a lr e a dy de c ide d u po n d ir e c t app e a l.

Th e Pos t Co nv ic tio n Co urt c on c lud e d at th e e nd of the he ari ng that th e ba sic issues were attacking the things addre ssed upon direc t a ppeal, a nd such attac ks are prohibited by

the 1995 Post Convi ction Act. T h e C ourt nonethele ss will make

va ri ou s f ind ing s b e low a ndre vie w i ssu e s n ot r a ise d o n d ir e c t app e a l.

Th e 19 95 Pos t Co nv ic tio n A c t pr ov ide s th a t:-34-

A g round for

relief is previously

determined if a court of compete nt jurisdiction has ruled on the me rits after

a full and fair hearing. Afull and fa ir hea ring has occ urre d wh e re the pe tit ion e r i s a ff orded th e op po rtun ity

to c a ll w itn e sse s a ndoth e rw ise prese nt evidence , reg ardle ss of whethe r t h e p eti tioner ac tually introduced a ny evidenc e.

Tenn. Code Ann. § 40-30-106( h). Reg arding the exculpatory evidenc e, we conclude that this iss ue
wa s p re v i o u s l y

d et er m i n ed o n d i re ct ap p ea l
, as t h i s C o u rt fo u n d t h at t h e i n fo r m at i o n , al t h o u gh delay ed, wa s disclosed. Thompson, 2003 WL 1202979, at *12-13. As to the i ssue of the leng th of

c los ing arg ume nts , w e c on c lud e that th is i ssu e wa s p re vio us ly de te rm ine d o n di rect app e a l. T his Court found that th e P et i tioner orig inally ag ree d to a thirty -minute time limi t but later re quested fo rt y -f ive min ute s fo r c los ing a rg ume nt. I d. a t *1 5. Th e tr ia l c ou rt the n de te rm ine d that forty min ute s f or e a c h s ide wa s su ff

ic ie nt, a ndthi s Co urt de te rm ine d th a t th e Pe tit ion e r f a ile d to e sta

bli sh that the trial court abused its discretion. I d. Acc ording ly
, we conclude that these two issues were pr e vio us ly

de te rm ine d o n d ir ect app e a l, and , th e re fo re , th e Pe tit ion e r i s n ot e nti tle d to po stconviction re lief.

2. Issues Not Raised On Direct Appeal

The ne x t three issues raised by the Petitioner are waived. T he Petitioner conte nds that the trial court e rre d in not allowing the Petitioner his rig ht to allocution. Next, the P etitioner alleg es that t h e tr i a l c o u r te rr e d i n ru l i n g t h a tt h e P e t i t i o n e r c o u l d n o ti n s tru c th i s C o u n s e l ab o u ttr i a l s tr a t e g y. Finally , the P etitioner contends that the t rial court err ed in instructing the jury about the amount of fines to be imposed prior

to deliberations. A post-conviction court shall dismiss claims which have been w aived. Te nn. Code Ann. § 40-30- 106(g ) (2003) . “A g ro u n d fo r re l i ef is waived if the petitioner per sonally

or throug h an attorney

failed to prese nt it for de termination in any proce eding be fo re a c ou rt of com pet ent ju risd ic tio n in wh ic h th e g ro un d c ou ld h a ve be e n p re se nte d, ” wi th

c e rt a in e xc e p t i o n s n o t ap p l i c ab l e i n t h e p r e s e n t c a s e

. T e n n

. C o d e A n n

. § 4 0

- 3 0

- 1 0 6 ( g )

. B e c a us e the se iss ue s c ou ld h a ve be e n r a ise d o n d ir e c t app e a l, w e c on c lud e that th e se iss ue s a re waive d inthi s post-conviction proc eeding pursuant to code section 40-30- 106(g ). Acc ording ly , we c onclude that the Pe tit ion e r i s n ot e nti tle d to re lie f o n th e se iss ue s.

F urthe r, we no te that th e Pe tit ion e r i s no t e nti tle d to plain e rr or re vie w o f the se iss ue s b e c aus e “the plain e rror

doctrine ha s no application in post-conviction re lief proc eeding s.” C orwyn E. Winfield v. S tate, 2003 WL 22922272, at *5 (Te nn. Crim. App., at J ackson, D ec. 10, 2003)
, perm. app. denied ( T e n n

. M a y 1 0
, 2 0 0 4 ) ; s e e a ls o St a te v

. We s t, 1 9 S. W. 3 d 7 5 3
, 7 5 6

- 4 7 ( T e n n

. 2 0 0 0 )

. We conclude , there fore , that these issues ar e wa ived.

III. Conclusi on-35-

I n acc ordanc e with the for eg oing a uthorities and re asoning , we a ffirm the judg ment of the po st- c on vic tio n c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE