IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 20, 2005 Session

STATE OF TENNESSEE v. WADE P. TUCKER

 Appeal from the Circuit Court for Franklin County

No. 13166 J. Curtis Smith, Judge

No. M2004-02792-CCA-R3-PC - Filed November 22, 2005

This is an appeal as of right from a denial of post-conviction relief. The Defendant, Wade P. Tucker,

was convicted of attempted first-degree murder pursuant to a guilty plea, and especially aggravated

robbery and aggravated burglary following a bench trial. The Defendant was sentenced to twentyfour years in the custody of the Tennessee Department of Correction (TDOC). This Court upheld

the Defendant’s attempted murder and especially aggravated robbery convictions on direct appeal,

but reversed the conviction for aggravated burglary. See State v. Wade P. Tucker, No. M2001-

02298-CCA-R3-CD, 2002 WL 1574998 (Tenn. Crim. App., Nashville, July 17, 2002). The

Defendant subsequently filed a petition for post-conviction relief, which was denied. The Defendant

now appeals denial of post-conviction relief, arguing: (1) his conviction for attempted first degree

murder is void due to a faulty guilty plea; and (2) he received ineffective assistance of trial counsel.

We affirm the judgment of the post-conviction court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.

MCLIN, JJ., joined.

Robert G. Morgan and Francis Pryor, Assistant Public Defenders, Jasper, Tennessee, for the

appellant, Wade P. Tucker.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

J. Michael Taylor, District Attorney General; and Steve M. Blount, Assistant District Attorney

General, for the appellee, State of Tennessee.
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OPINION

FACTS

I. Background Facts

The convictions at issue in this case result from the robbery and brutal shooting of the

Defendant’s estranged wife in her rural Franklin County home during the early morning hours of

January 23, 2000. The events leading to the Defendant’s convictions were summarized by this

Court on direct appeal as follows:

The stipulation of facts revealed that the defendant and the victim were

husband and wife. On November 19, 1999, the victim filed a divorce complaint in

which she alleged that the defendant had been guilty of “inappropriate marital

conduct and adultery.” In the complaint, the victim sought custody of the parties’ two

minor children and asked that she be awarded, inter alia, the parties’ jointly-owned

house located on Rock Creek Road in Franklin County. As of January 23, 2000, the

divorce was still pending, no property rights had been adjudicated, and the defendant

was not subject to any order restraining him from going about the victim or the

parties’ house. The defendant resided at the Dripping Springs Subdivision home of

his father, Gerald Tucker, and the victim resided at the Rock Creek Road house.

Between November 19, 1999[,] and January 23, 2000, the defendant had been to the

Rock Creek Road house on multiple occasions to pick up and drop off the parties’

children. On the evening of January 22, 2000, the parties’ children were staying at

Gerald Tucker’s home. Thus, on the night of January 22 and in the early morning

hours of January 23, 2000, the victim was the only person staying at the Rock Creek

Road house.

At approximately 2:30 a.m. on January 23, 2000, the victim awoke to gunfire

and realized that she had been shot. She got up from her bed and was shot again. She

saw “a male looking figure near her bedroom door holding a long-barreled gun.” The

victim fled to a closet, and the assailant, who was wearing a ski mask, came into the

closet and shot her again. Afterthe assailant left the closet, the victim crawled toward

her bed to get the cordless telephone for the purpose of calling 911. Due to injuries

to her hands and arms, she was unable to handle the phone and pushed it along the

floor back to the closet. She heard sounds of the assailant moving about in the house.

The victim was able to dial 911 with her tongue and ultimately reached the Franklin

County Sheriff’s Department dispatcher. While the victim was on the telephone, she

saw the ski-masked intruder come back to the closet through the glow of the

bathroom light. Despite the presence of the ski mask, the victim was able to

recognize the intruder as the defendant. She screamed, and the defendant shot her

again. The victim “played dead at that time.” She heard the defendant in the bedroom

opening drawers in her jewelry chest.

Franklin County officers arrived at the Rock Creek Road house pursuant to

the 911 call and found the victim in the closet. She was transported to a hospital in

Winchester and was ultimately air-lifted to a medical center in Chattanooga. The
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victim suffered “multiple gunshot wounds to her chest and neck area, and to her arms

and hands.” The stipulation of facts reveals that the victim “was severely injured,

with said injuries being life threatening [, resulting in her being] disfigured.”

Both the defendant’s and the victim’s lives were insured by a Horace Mann

Insurance Company life insurance policy which provided “that, if one of them died,

the survivor would receive $300,000.”

The officers obtained a sample of the victim’s blood, and they recovered

shotgun pellets from the victim's bed, the bedroom floor, the closet, the victim’s

night shirt, and the hospital trauma room where she was treated. The officers also

recovered shotgun wadding from the bedroom area and from the victim’s person. The

officers found the victim’s jewelry chest open and drawers pulled out of furniture

throughout the house. An outside door was standing open with a window in the door

broken. The officers obtained samples of glass from the door. They also found a live,

twelve-gauge shotgun shell in the house.

Officers who were dispatched to Gerald Tucker’s house arrived at 3:08 a.m.

and found the defendant’s truck parked outside the house with the “hood of the truck

. . . hot to the touch.” When the defendant’s father led the officers to the defendant’s

room, “he actually crawled out of the bed and crawled on the floor before standing

up with the assistance of his father.” He appeared to the officers to be “very shaken.”

With the consent of Gerald Tucker, the officers searched his house and found

a twelve-gauge shotgun that, despite having been recently cleaned with oil, contained

human blood and tissue inside the barrel. The DNA of the blood and tissue inside the

shotgun barrel was consistent with the victim’s DNA. The officers found particles

of glass inside the defendant's truck which proved to be “like and consistent with

respect to refractive index” to the glass broken from the door window at the Rock

Creek Road house.

In a statement given to the officers, the defendant denied that he had gone to

the victim’s house and that he had shot her. He admitted to an intimate relationship

with a woman named Sabrina Hodge.

On February 18, 2000, a neighbor of Gerald Tucker found a dark plastic bag

in a wooded area near the road that leads to the defendant’s father's house. Inside the

bag, he found a wallet that contained the victim’s identification papers. Being aware

of the assault against the victim, the neighbor called the TBI. The TBI agent who

took custody of the bag found inside, in addition to the wallet, numerous pieces of

jewelry, coins, a ski mask, gloves, coveralls, and boots. The plastic bag also

contained another plastic bag which contained “numerous love letters and cards”

which had been sent to the defendant from Ms. Hodge. The second bag also

contained “numerous photos of Sabrina Hodge in revealing underwear clothing.”

The victim identified the wallet as hers and the jewelry and coins as her

property that had been stored in her jewelry chest prior to the attack. The photographs

bore the defendant’s fingerprints. The victim identified the ski mask as being similar

to the one the defendant wore during the attack. The ski mask and gloves bore

particles of glass which “were like and consistent with respect to refractive index”
Prior to entering his guilty plea to the attempted murder charge in open court, the Defendant had signed a

1

Guilty Plea and Waiver of Rights form as to this charge in April of 2001. 

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to the glass broken from the door. Furthermore, via DNA analysis, blood found on

the ski mask matched the victim’s blood. The coveralls from the bag contained five

spent twelve-gauge shotgun-shell casings. Laboratory analysis revealed that all five

shells had been fired from the twelve-gauge shotgun found at Gerald Tucker’s house.

Analysis of the empty shotgun casings found in the coveralls and the live

twelve-gauge rounds found in the victim’s house and in the defendant’s truck

revealed that all of the ammunition was “likely manufactured at the same time as

each other and were likely packaged together by the manufacturer.”

Based upon comparisons made between the pellet pattern of the twelve-gauge

shotgun found in Gerald Tucker’s house and the pellet pattern found in the victim’s

nightshirt, TBI laboratory personnel opined that she was shot on at least one occasion

from a distance of less than ten feet.

Wade P. Tucker, 2002 WL 1574996, at *1-3. 

In March of 2000, a Franklin County grand jury indicted the Defendant on one count of

attempted first degree murder, see Tenn. Code Ann. §§ 39-13-202 and 39-12-101, one count of

especially aggravated robbery, see id. § 39-13-403, and one count of especially aggravated burglary,

see id. § 39-14-404. 

II. Plea Hearing and Bench Trial

At a hearing conducted in May of 2001, the Defendant entered a guilty plea to the attempted

murder charge and pled not guilty to the remaining two charges. The record reveals that the 1

Defendant elected to proceed on the robbery and burglary charges at a bench trial pursuant to a

carefully crafted stipulation of facts. Furthermore, all three pleas were entered with the

understanding of “open” sentencing, with the trial court to determine the Defendant’s sentence at

a later hearing. 

At the plea hearing, the trial court carefully explained to the Defendant the rights he was

forfeiting by entering a guilty plea to the charge of attempted murder. During this colloquy, the court

asked the Defendant no less than five times if he had any questions, and each time the Defendant

responded, “No, sir.” The court asked the Defendant if he wanted to give up his rights, and he

replied, “Yes, sir.” The court asked the Defendant if his attorney had discussed his case with him;

if they had discussed possible defenses; and if he was satisfied with his counsel’s representation.

To each of these questions the Defendant replied, “Yes, sir.” The court asked the Defendant if

anyone had forced him to enter his guilty plea, and the Defendant replied, “No, sir.” The court asked

the Defendant if he had read and discussed with his attorney his written guilty plea, and if he had

signed it, and the Defendant replied, “Yes, sir.” As a final question, the court asked: “Mr. Tucker,

are you guilty of this offense?” However, the Defendant did not speak, rather the Defendant’s

counsel responded as follows: “Your Honor, under the facts and circumstances that we’ve indicated,
The Defendant had been indicted for especially aggravated burglary.

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A conviction for especially aggravated robbery requires 100% service of sentence. See Tenn. Code Ann. § 3

40-35-501(i)(1) and (2)(E). 

The Defendant’s trial counsel, against whom the Defendant’s allegations of ineffective assistance of counsel 4

were levied, will be referred to only as “Counsel” throughout this opinion.

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I have, Mr. Tucker has entered this guilty plea willingly and openly. There is simply no way to

contravene the scientific evidence, the other evidence indicated, and for that reason he will state he’s

entering a guilty plea.” Whereupon the trial court accepted the plea and found the Defendant guilty

of attempted first degree murder. 

Based on the stipulated facts entered at the plea hearing, the trial court also found the

Defendant guilty of the indicted charge of especially aggravated robbery, and guilty of the lesserincluded charge of aggravated burglary. 

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III. Sentencing and Direct Appeal

In May of 2001, the Defendant was sentenced as a Range I, standard offender, to twenty-four

years for his attempted murder conviction, twenty-four years as a violent offender for his especially

aggravated robbery conviction, and five years as a standard offender for his aggravated burglary 3

conviction. The sentences were ordered to be served concurrently, for an effective twenty-four year

term in the TDOC. On direct appeal, this Court reversed and vacated the aggravated burglary

conviction, but affirmed the remaining convictions and twenty-four year sentences. See Wade P.

Tucker, 2002 WL 1574996. In December of 2002, the Tennessee Supreme Court denied further

appeal.

IV. Post-conviction

In November of 2003, the Defendant timely filed a pro se petition for post-conviction relief

alleging multiple issues. An attorney was appointed, and an amended post-conviction petition

alleging an involuntary guilty plea and ineffective assistance of counsel was filed in March of 2004.

The Defendant received a post-conviction hearing in August of 2004. 

At the post-conviction evidentiary hearing, the Defendant’s trial counsel (Counsel) testified 4

that he met with the Defendant and various members of his family “many times.” During these

meetings Counsel discussed possible theories of defense, but ultimately determined the evidence

against his client was “overwhelming.” Counsel therefore advised his client to plead guilty to the

attempted murder charge and “seek dismissal of the Especially Aggravated Robbery case because

of the deferential in punishment,” thereby making the Defendant “eligible for parole as early as

possible.” When asked if he was aware of Mr. Milton Eidson as a potential witness, Counsel said

he was, but elected not to interview him as he believed any effort to do so would have been “futile”

considering the substantial evidence against his client. 
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When asked about employing experts to challenge the State’s DNA evidence, Counsel stated

he discussed the process, including the cost, with the Defendant and his family, but believed any

such efforts would not have helped the case given the “totality of the facts.” Counsel testified that

he did not believe that the State’s scientific evidence “would be contravened” by other experts, and

further noted: “You’ve got to remember in this case there was not only circumstantial evidence, but

there was direct evidence in this case.” 

When asked why he did not pursue government funding to hire expert witnesses to challenge

the State’s scientific evidence, Counsel stated that he did attempt to have funds held in escrow

pursuant to the Defendant’s divorce proceedings released for this purpose, but his request was

denied. However, Counsel added that the real issue was not a matter of whether his client could

afford to hire expert witnesses, but rather that doing so would not, in his opinion, yield any positive

results. On cross-examination Counsel testified that he was experienced in criminal law, had

previously handled cases where DNA evidence was challenged, and he had fully discussed with the

Defendant the pros and cons of proceeding to trial or pleading guilty. 

Mr. Milton Eidson, a neighbor of the property where the shooting took place, testified that

on the night in question he observed a black Chevrolet pickup in his driveway between 11:30 and

11:45 p.m., and approximately an hour later he heard three gunshots. On cross-examination, Mr.

Eidson admitted he was not sure of the exact times of these events as he was not “looking at the

clock,” and it may have been as late as 3:00 a.m. when he heard the three gunshots. Mr. Eidson

testified that the distance between his driveway, where he saw the truck, and the house where the

victim was shot, was about six hundred yards.

The Defendant’s father, Mr. Gerald Tucker, testified that he accompanied his son in meetings

with Counsel “numerous times.” During these meetings, Counsel was informed of Mr. Eidson, who

could testify to an unidentified individual in a black Chevrolet truck being in the general vicinity the

same night as the shooting, and of the Defendant’s claim that his girlfriend’s ex-husband kidnapped

him at gunpoint and forced him to participate in the shooting of the victim. However, Mr. Tucker

believed Counsel never followed up on either of these defense theories. Mr. Tucker also stated that

Counsel informed him that hiring outside experts to challenge the State’s DNA evidence would be

very expensive, but failed to inform him that government funding may have been available for such

a challenge. 

Additionally, two of the Defendant’s aunts and his sister also testified that they met with

Counsel and made him aware of possible leads on alternative defense theories, but Counsel failed

to pursue them. 

The Defendant did not testify at his post-conviction hearing.

In a September 2004 order the trial court denied the Defendant’s petition for post-conviction

relief. In this order, the court made detailed findings and concluded that Counsel’s “strategic and

tactical choices were reasonable in light of the state’s overwhelming proof in this case and should
Manning was a direct appeal, not an appeal of a post-conviction judgment. 

5

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not now be second-guessed.” Thus, it found that the Defendant failed to show any evidence of

deficient representation by his trial counsel. As to the claim of an involuntary guilty plea, the court

noted that the Defendant “did not take the stand at the post-conviction hearing and presented no

proof” as to this claim, thereby rendering it meritless. This appeal followed.

ANALYSIS

The Defendant first alleges that his conviction for attempted murder is void because he never

audibly admitted guilt at the plea hearing. The Defendant also claims his trial attorney was

constitutionally deficient in two respects: (1) Counsel failed to interview potential witnesses, and (2)

Counsel failed to seek funding for independent review of the State’s scientific evidence. We

disagree.

I. Standard of Review

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-

30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the

weight and value to be given their testimony, and the factual issues raised by the evidence are to be

resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,

960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for postconviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the

evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d

at 578. 

II. Void Guilty Plea

In the Defendant’s first issue on appeal, he claims that “the judgment of guilt to attempted

murder in the first degree [is] void because [he] never admitted guilt at the plea proceeding.” To

support this assertion the Defendant argues that while he affirmed that he understood the rights he

was surrendering and that he had signed a written guilty plea, he never himself audibly said he was

guilty. Rather, his trial counsel answered in the affirmative for him. The Defendant argues that his

plea is therefore void, and his plea proceeding was constitutionally deficient, violating his due

process rights as guaranteed by Article I, section 9 of the Tennessee Constitution and the Sixth

Amendment to the United States Constitution. 

The Defendant admits that he failed to raise this issue on direct appeal, or in his postconviction petition, or at his post-conviction hearing, but argues that it is not waived because his

judgment of guilt is “void ab in nitio” [sic] and therefore not subject to waiver. Alternatively, the

Defendant argues that this is an “exceptional circumstance[]” wherein this Court can address the

issue on its own accord as a matter of plain error, citing State v. Manning, 500 S.W.2d 913, 914

(Tenn. 1973). The State argues that the Defendant has waived this issue for failure to include it in

5

the post-conviction petition or raise it at prior proceedings.
We note that a defendant is allowed to enter a plea of guilty when he or she believes it is in their best interest

6

to accept a plea bargain, but while still maintaining his or her innocence. See North Carolina v. Alford, 400 U.S. 25,

37-38 (1970). Accordingly, it is well settled law that a guilty plea may be accepted, and a judgment of conviction

entered, without the defendant actually admitting he or she is guilty.

We note the Defendant raised an involuntary guilty plea claim in his original pro se post-conviction petition,

7

however, his argument was that his plea agreement was violated when he was sentenced to serve 100% of his especially

aggravated robbery conviction. We note that the record reveals that the Defendant never entered into a plea agreement,

and this argument was not raised at the post-conviction hearing when the Defendant was represented by counsel. 

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We begin our analysis by noting that the Defendant’s conviction would be at most voidable,

and not void. The Defendant has not provided any authority, and we know of none, to support his

claim that failing to personally answer “yes” when asked “are you guilty?” at a guilty plea hearing

renders his judgment of conviction void on its face. Rather, the well established standard for 6

challenging the validity of a plea proceeding and a potentially void (i.e. voidable) guilty plea is set

forth in Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Macky, 553 S.W.2d. 337 (Tenn. 1977).

 However, in this case, the Defendant has waived any potential Boykin or Macky claim with regard

to not audibly admitting his guilt by failing to raise thisissue in his post-conviction petition or at prior

proceedings.7

The record reveals that the Defendant did not raise the issue of a “void” conviction in his postconviction petition or before the post-conviction court. It is settled law that an issue not presented

in the petition for post-conviction relief or any of its amendments “may not be raised for

the first time on appeal.” State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), rev’d on other

grounds, State v. Terry, 118 S.W. 3d 355 (Tenn. 2003). See also Tenn. Code Ann. § 40-30-106(g)

(“A ground for relief is waived if the petitioner personally or through an attorney failed to present it

for determination in any proceeding before a court of competent jurisdiction in which the ground

could have been presented.”). Moreover, plain error analysis is not available in an appeal of a postconviction denial. See State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000). Accordingly, this issue

is waived.

III. Ineffective Assistance of Counsel

The Defendant also asserts that histrial attorneywas constitutionally deficient in two respects

relating to his defense: (1) Counsel failed to interview a potential witness, and (2) Counsel failed to

“seek funding to provide resources for independent review of forensic evidence.” The Defendant

further argues that these deficiencies led to actual prejudice and he is therefore entitled to postconviction relief. 

Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the

Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the

right to such representation includes the right to “reasonably effective” assistance, that is, within the
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range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466

U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.

A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as having produced

a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of two components:

deficient performance by the defendant’s lawyer, and actual prejudice to the defense caused by the

deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant bears the burden of

establishing both of these components by clear and convincing evidence. See Tenn. Code Ann. § 40-

30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice

is a sufficient basis upon which to deny relief on an ineffective assistance of counsel claim. See

Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

This two-part standard of measuring ineffective assistance of counsel also applies to claims

arising out of a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice component

is modified such that the defendant “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at

59; see also Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

In evaluating a lawyer’s performance, the reviewing court uses an objective standard of

“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court

must be highly deferential to counsel’s choices “and should indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d

at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of hindsight to

second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and circumstances

as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246

(Tenn. Crim. App. 1998).

A trial court’s determination of an ineffective assistance of counsel claim presents a mixed

question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This Court

reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de novo

standard, accompanied with a presumption that those findings are correct unless the preponderance

of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--such as whether

counsel’s performance was deficient or whether that deficiency was prejudicial--are reviewed under

a purely de novo standard, with no presumption of correctness given to the trial court’s conclusions.”

Id. 

A. Failure to Interview a Potential Witness

The Defendant argues that Counsel provided deficient representation because he knew Mr.

Eidson was a potential witness, but failed to interview him. The Defendant asserts that Mr. Eidson

testified at the post-conviction hearing that an unidentified person was in the same general vicinity

of the crime scene the night of the incident. Mr. Eidson testified that this person was in a black
Testimony was submitted at the post-conviction hearing that the Defendant’s truck was a grey Toyota, and the 8

stipulated facts placed the shooting of the victim at 2:30 a.m. 

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Chevrolet pickup, and that he heard gunshots between midnight and 1:00 a.m. The Defendant now 8

claims that Mr. Eidson’s testimony contradicted the State’s evidence, and Counsel’s failure to

discover this testimony prior to his guilty plea and bench trial amounted to deficient representation

which prejudiced him. 

It appears that the Defendant’s argument is actually a claim of inadequate investigation prior

to the guilty plea. However, the argument is also directed at the failure to subpoena the witness to

the Defendant’s trial. To prevail on an ineffective assistance of counsel claim with regard to failure

to subpoena or produce a potential witness, the defendant must 1) produce the witness at the postconviction hearing, 2) show that trial counsel could have located the witness, and 3) “elicit both

favorable and material testimony from the witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn.

Crim. App. 1996) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). In the case

at hand, the Defendant produced the allegedly overlooked witness at the post-conviction proceeding,

and Counsel admitted that he was made aware of this potential witness. We again note that the

Defendant’s conviction for attempted first degree murder was based upon his guilty plea, not a trial

on the merits. We also note that his conviction for aggravated robbery followed a bench trial with

all facts being stipulated.

Mr. Eidson testified at the post-conviction hearing that he heard shots, but added that it was

not unusual to hear gunshots in the rural area in which he lived. He also stated that he was not sure

of the time he heard the shots, and they may have occurred as late as 3:00 a.m. the morning of the

incident. Therefore, the shots Mr. Eidson heard did not contradict the time frame advanced by the

State and documented by the 911 call. Moreover, the Defendant failed to present any potential

defense theory in which the black Chevrolet truck observed byMr. Eidson in his driveway, which was

some six hundred yards from the house in which the victim was shot, would have served as material

evidence. In short, we fail to see how Mr. Eidson’s testimony was particularly favorable to the

Defendant, and we conclude that it was not material to his case. We are unconvinced that

interviewing this witness would have caused Counsel to alter his opinion that the Defendant should

plead guilty to attempted murder. We are also unconvinced that this witness’s statement would have

modified counsel’s strategy to submit the remaining charges to the judge upon stipulated facts.

Accordingly, we find that Counsel’s decision not to interview Mr. Eidson in no way prejudiced the

Defendant. 

B. Failure to pursue funds to challenge the scientific evidence

In the Defendant’s last issue on appeal, he claims that his trial attorney provided ineffective

assistance of counsel by failing to declare his client indigent and pursue government funding to hire

independent experts to review and potentially challenge the State’s forensic evidence. In support of

this claim, the Defendant argues that case law requires the appointment of expert assistance when an

indigent defendant has shown assistance “is necessary” for a constitutionally adequate defense,

quoting from State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995), and citing State v. Scott, 33
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S.W.3d 746 (Tenn. 2000) (holding that an indigent defendant was entitled to state-funded expert

assistance in the area of DNA analysis). 

We conclude the Defendant has failed to establish that Counsel performed deficiently when

he determined that it would have been “futile” to pursue funds for independent review of the scientific

evidence because he did not believe “it would be contravened.” In Barnett, our supreme court held

that a defendant should be granted access to an “independent psychiatric expert” only after proving

a “particularized need” through showing that the facts and circumstances of his particular case would

require an expert in order to “insure a fair trial.” Barnett, 909 S.W.2d at 431. However, the

Defendant in this case provided only unsupported assertions that independent scientific experts may

have been helpful to his case. Thus, the Defendant failed to demonstrate that independent expert

testimony was “necessary” to insure he received a fair trial. 

Additionally, the facts in Scott are distinguishable from the Defendant’s case in several crucial

aspects: in Scott, our supreme court noted that “the State did not have an overwhelming case” against

the defendant; the victim “could not identify her attacker”; and “the DNA evidence appears to have

been the keystone of the State’s case.” Scott, 33 S.W.3d at 755. Conversely, in this case the trial

court characterized the evidence against the Defendant as “the state’s overwhelming proof”; the

victim did identify the Defendant as her attacker; and while the State utilized DNA evidence, it also

had direct evidence in the form of the victim’s testimony as well as a substantial amount of other

forensic circumstantial evidence that could properly be considered to “unerringly point the finger of

guilt to the defendant to the exclusion of all others beyond a reasonable doubt.” Hicks v. State, 490

S.W.2d 174, 178 (Tenn. Crim. App. 1972). 

Because we find the Defendant’s representation by Counsel was not deficient with regard to

Counsel’s election not to pursue independent investigation of the scientific evidence, we need not

address the Strickland prejudice prong. Accordingly, the Defendant has failed to prove by clear and

convincing evidence that he received representation that fell outside the range of reasonable

professional assistance. This issue is without merit. 

CONCLUSION

Based on the foregoing reasoning and authorities, we affirm the judgment of the court denying

post-conviction relief.

___________________________________ 

DAVID H. WELLES, JUDGE