### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs M

ay 16, 2001
STATE OF TENNESSEE v. JAMES E. GORDON
Direct Appeal from the Criminal Court for Williamson County

No. 999-332 Donald Paul Harris, Judge

No. M2000-02435-CCA-R3-PC - Filed July 26, 2001

The petitioner appeals the p ost-con viction court’s denial of his petition for post-conviction relief. He claims that he received ineffective assistance of trial counsel because trial counsel failed to

call
c ertain witnesses and did n

ot call the petition

er to testify

on his own behalf a

t trial. After re

vie w , we affirm the judgment of the post-conviction court denying the pe titioner any relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W IL LIAMS , J., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. George Travis Hawkins, Franklin, Tennessee, for the appellant, James E. Gordon.

Paul G. Summers, Attorney General and Reporter; David H. Findley , AssistantAttorney Ge

neral; Ronald L. Davis, Distr

ict Attorney

General; and De

rek Keith Smith, Ass

istant Dis trict Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner, James E. Gordon, appeals the Williamson County Circuit Court’s denial of his petition for post-conviction relief. The petitioner was convicted o f fi rst degree premeditated murder and aggravated burglary

in June of 1996. He was sentenced to life without the p

ossibility of parole. His convi

ctions were aff

irmed on direct a

ppeal in February of 1998 by

this court, which provided a detailed version of the facts of the crime as adduced by the evidence at

trial. See State
v. Gordon , No. 01C01-9611-CC -00495, 1998 WL 4

4920 (Tenn. Crim.

App., filedFeb. 5, 1998, at Nashville), perm. appeal denied , concurring in r esults only , (Tenn., filed Dec. 14, 1998). He filed his petition for post-conviction relief on September 29, 1999, which was denied, after a hearing, on October 23, 2000. The petitioner filed his notice of appeal on Septemb

er 27, 2000. His

appeal is properly before this court , and h e asserts that the post-conviction court incorrectly found that he received effective a ssista nce of trial counsel. Specifically, he claims that trial counsel was-2-

ineffectivefor not calling h im to testify o

n his own behalf ab

out his intoxicated state at the time of the murder. He also claims that trial counsel was ineffective for not calling his roommates to testify about his intoxicated state several hours after the murder.

Facts

At the post-convicti

on hearing, the

defendant testif

ied that he had be

en drin king he avily before going to see

the victim, the father-in-law of his estranged wife. He continued drin king while waiting for his father-in-law and the petitioner’s three year old daughter to come home. When they arrived, the defendant

entered thr ough an unlocked door and sai d he saw his father-in- law “messi ng” with his daughter. At that point, he lost control of himself and began fighting with the victim and ultimately sta

bbed the victim with

a pair of vege

table scissors.

The defendant testif

ied that his trial c

ounsel advised him

not to testify at

trial. The defen

dant, however, admitted that he agreed withthis recommendation but was not sure whether or not he was clear that the decision was his alone to make. He said if he had test

ified he would hav

e told the jury that he was drunk and in a rage. However, he could not say if his testimony would have be en any different than his taped statement to the police, which was played for the jur y. Regarding his roommates, the defendant testif ied that he was not

very close

to them and did not ev

en know their
names. He also testified that he did not know whethe r they would

know anythin

g that would help his case.

The defendant’s trial counsel testified that he had been practicing law for more than 30 ye ars and had tried more than 300 trials. He testified that he was initially worried that the defendant might be facing the death penalty and, conseque ntly , had four or five people working on the case. He testified that it was always his practice prior to trial to inform the defendant of his right to testify and, following the presentation of the State’s case, he sometimes made a recommendation for or against having the defe

ndants testify. He did not specif ically remember advisin

g the defendan

t; however, he sai d he pro bab ly ad vis ed h im n ot t o te sti fy. In any e vent, the defend

ant’s version of e

vents came in through his taped statement to police. Regarding the defendant’s roommates, trial counsel testified that his

investigator had been told that they had seen

the defendant in the parking lot of his apartment complex in an intoxicated state four or five hours after the crime. Since their testimony only concerne d events happening after the crime, trial c

ounsel did not think th

eir testimony

would have been h

elpful.

Post-conviction petitioners bear the burden of proving their a llegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the appellate court accords the trial court’s findings of fact the weight of a jury ver dict, and these findings are conclusive on appeal unless the evidencepreponderates against them. Henley v. Sta te , 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997).-3-

The Sixth Amendment to the United States Constitution and Articl e I, section 9 of the Tennessee Constitution both require that a defendant in a criminal case receive effective assistance of counsel. Baxter v. Rose , 523 S.W.2d 930 (Tenn. 197 5). Wh en a defendant c laims constitutionally

ineffective as sistance of couns el, the standard a

pplied by the

courts of Tennes see is “whether the advice given or the service rendered by

the attorney

is within the range of competence demanded

by attorneys in criminal cases.” Summerlin v. State , 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

In Strickland v. Washington , the United Stat es Supre me Court outlined the requirements necessary to demonstrate

a violation of the Sixth Amendment right to effec

tive assistance o

f counsel. Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). First, the defendant must show that counsel’s p erf

ormance fell below an objective standard of reasonableness under prevailing professional norms and must demonstrate that counsel made errors so ser i ous that he was not functioning as “counsel” guaranteed by the Constitution. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. Second, the petitioner must show that counsel’s performance prejudiced him and that errors were so serious a

s to deprive the petitioner of a fair trial, calling into question the reliability of the outcome. Id. ; Henley , 960 S.W.2d at 579.

“When addressing an attorney’s performance it is not our func tion to ‘second guess’ tactical and strategic choices pertaining to defense matters or to measure a defense attorney’s representation by ‘20-20 hindsight.’” Henley , 960 S.W. 2d at 579 (q uoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Rather, a court reviewing counsel’s performance should “eliminate the distorting effects of hindsight

. . . [and] evaluate the conduct from the perspective at the time.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. “The fact that a particular strategy or tactic f ailed or hurt

the defense, does
n ot, standing alone, establish unreasonable representation.” Goad v. State , 938 S.W.2d 363, 3 6 9 (Tenn. 1996). On the other hand, “deference to matters of strategy and tactical choices applies only if the choices are informed ones based upon adequate preparation.” Id.

To establish prejudic

e, a party c

laiming ineffec

tive assistance o

f counsel must sh

ow a “reasonable

probability

that, but for couns

el’s unprofessio

nal er rors, the result of the proceeding would have been different.” Id. ; Strickl and , 466 U. S. at 694, 104 S.Ct. at 2 068. A reasonabl

e probability is “a probability sufficient to undermine confide nce in the outcome.” Id.

In reviewing a claim of ineffective assistance of counsel, an ap

pellate court ne

ed not address bothprongs of Strickl and if it determines tha t the petitioner ha

s failed to carry

his burden with respect to either pron g. Henley , 960 S.W.2d at 580. When the claim is predicated upon counsel’s failure to present potential witnesses, their testimony should be offe red at th e post-conviction hearing. In this manner, the court can consider (1) whether a material witnes s existed and could have been discovered but for

counsel’s neglect, or a known witness was not interviewed by counsel; and (2) whether the failure to discover or interview a witness prejudice

d the petitioner or

the failure to callcertain witnesses denied critical evidence to the prejudice of the petitioner. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).-4-

A tthe conclusion of the post-conviction hearing, the post-conviction court made t h e following findings rega

rding the petitio

ner’s claim of ine

ffectiveness f

or not calling ce

rtain witnesses: The court could not determine the value of the witnesses’ testimony

withouthearing the tes

timony of the

witnesses, which were not called at the post-conviction relief hearing. Ne verthe less, even had the testimonyof

those witnesses been that the petitioner was intoxicated at the t ime they observed him, this time was several hours after the murder. Ultimately th

ose witnesses, ha

d they testif

ied at trial, would not have affec

ted the outcome of

the trial. Regardingthe petitioner’s cla im t hat cou nse l wa s in effe cti ve fo r no t ca lli ng th e pet iti one r to tes tif y, the post conviction

court made the fo

llowing findings: [The petitioner’s] testimonyat the post-conviction relief hearing was almost identical to his statement to the police, which was [submitted] to the jur y . Nothing in his statement at the post-conviction relief hearing would h

ave assisted him in t

he trial.

We find, as did the post

-conviction cour

t, that the petitione

r’s f irst claim is without mer

it because the petitioner failed to present thewitnesses that he claimed should have been c

alled on his behalf at trial. The failure to pre sent s uch witnesses precludes this court and the post-conviction court from makin g a

determination of how the petitioner was prejudiced by trial counsel fai

ling to present their testimony. See, e.g. , Black v. State , 794 S.W.2d at 757.

We also agree with the post-conviction court’s findings that the petitioner was not prejudiced by trial counsel not calling the petitioner to testify on his own behalf. Any such testimony that he would have presented at trial would have in no way helped his case and was almost identical to

his statement that was presented to the jury. Further more, ad vising the petitioner not to testify was certainly a strategic decision by trial counsel that this court will not second guess. See, e.g. , Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996).
Conclusion

After reviewing the record before us, we hold that the petitioner

has failed to show how the record preponderates against the trial cour t ’s findings that the petitioner received effective assistance of counsel. Accordingly, the judgment of the post-conviction court denying the petitioner any relief is affirmed.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE