1 See State v . Ken neth W ayn e N esbitt , No . 02C 01- 980 1-C C0 002 9, 19 98 W L 7 423 80 ( Ten n. Cr im. A pp.,

Jack son , Octo ber 2 3, 19 98, reheari ng denied March 8, 1999). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs December 4, 2001
KENNETH W. NES BITT v. STATE OF TENNESSEE Appeal from the Circuit Court for Carroll County No. 97CR-1066 P.C. C. Creed McGinley, Judge

No. W2001-00394-CCA-R3-CD - Filed January 8, 2002

The Defendant, K enneth W. N esbitt, wa s convict ed of two counts of selling co caine by

a Carrol l County jury and sentenced to eight years on each count to be served concurre ntly. He appealed

his convictions and this Court affirmed the convictions and the sentences, and our supr eme court denied the Defendant’s applica

tion for p ermission

to appea l. 1 The Defendant

then file d a petitio n for post

conviction relief a

lleging ine

ffecti v e assistance of counsel. The trial court dismissed the petition. The Defendant now appeals to this Court alleging that the tr ial cour t erred in denying

him relief. We affirm t he judgme

nt of the tr

ial cour t.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined.
Steven L. West

and Dwayne D. Maddox III, Huntingdon, Tennessee, for the appe llant, Kenneth W. Nesbitt.
Paul G. Summers, Attorney General and Reporter; Joh n H. Ble dsoe, Assistant Attorney General; and Robert Radford, District Attorney General, for the appe llee, State of Tennessee.
OPINION
The Defendant contends that he was prejudiced by his trial counsel’s ineffective assistance bothprior to and during trial. He argues that trial coun sel was ineffec tive by fa iling to pro

perly engage in pre-tr

ial discov ery, fa

iling to pro

perly inv estigate

the Defe

ndant’s c ase, fa

iling to challenge a juror for cause, and failing to inform the Defe ndant of trial strategy and the dangers of asserting his constitutional right to testify.-2-

To sustain apetition f

or post-conviction relief, a defendant must prove his or her f actual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40- 30-210(f); Momon v. Sta te , 18 S.W.3d 1 52, 156 (Tenn. 1999). Upon review, this Court will not reweigh or reevaluate the evidence be low; 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 pe tition for pos tconviction relief are afforded the w eight of a jury ver dic t 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 578-79.
Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution guarantee a defendant the right to representation by counsel. See Statev. Burns , 6 S.W.3d 453 , 461 (Te nn. 1999) ; Baxter

v. Rose , 523 S.W.2 d 930, 936 (Tenn. 197 5). This rightto counsel includes the right to effective counsel. See Strickland v. Washington , 4 66 U.S. 668, 686 (1984) ; Burns , 6 S.W.3d a t 461; Baxter , 523 S.W.2d at 936.
To determine whether counsel provided effective a ssistance at trial, the court must decide whether counsel’s performance was within the range of competence deman ded o f attorne ys in criminal cases. Baxter , 523 S.W.2 d at 936; Hicks v. St ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succee d on a cla im that his or her counsel was ineffective at trial, a de fendant bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel
as guaranteed under the Sixth Amendment and that the deficient re pre sentatio n prejudiced the defendant re sulting in a fai lure to produce a reliable result. Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2 d at 245

. To satisfy the second prong, the defendant must show
a reasonable probability that, but for counsel’s unreasonable error , the fact finder would have had
reasona ble doubt regarding the defendant’s guilt. See Strickland , 466 U.S. a t 694-95. T

his
reasona ble probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).
When reviewi ng trial c ounsel’s actions, this Court s hould not us e the benefit of hindsight to second- guess trial strategy and criticize counsel’s tactics. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be j udged at t he time they
were made in light of all facts and circumstances. See Strickland , 466 U.S. a t 690; Hicks , 983 S.W.2d at 246.
The Defendant raises several a lleged instances of ineffective assistance of counsel p

rior to trial. First, the Defendant contends that trial counsel was ineffective by failing to properly prepa re for trial. The Defendant asserts that trial counsel did not properly investigate the criminal history of severa l State witnesses. Trial counsel testified at the post-conviction hearing that he reviewed the thick packet of discovery given him by the State which included a witness list. Trial counsel recalled discussions with the State regarding the criminal records of its w itnesses a

nd stated that he a lso-3-

consulted with coun sel for th e co-defendant s in the case. In dismissing this portion of the petition, the trial court stated:
The record

supports that the d

efense counsel d

id, infact, engage in appropriate pretrial discovery. The re cord further supports that the District Attorney General’ s of fice ha d an “ope

n file” p olicy re garding d iscover y and full

y cooper ated with defense counsel and made all materials ava ilable.
We find that the record supports the trial court’s findings and that trial counsel’s actions were within the range of competency

demanded of attorneys in criminal cases. See Baxter , 523 S.W.2d at 936; Hicks , 983 S.W.2d at 245.
Defendant

next argues that, during his trial, he was denied effective assistance of counsel by trial counsel’ s failure

to (1) ch allenge

for cau se a juror who smiled at him during jury selection, (2) play audio tapes of the undercover drug buy for the jury, (3) call two exculpatory witnesses, and (4) inform him that his criminal backgro und could be used to

impeach him if he testified. Trial counsel testified that his of

fice re viewed th

e conten ts of the ta

pes and c onclu ded that the tapes wo uld “neither add nor detract from any issues at trial” beca use the tapes neither implicated nor exonerated the Defendant. Trial counsel testified that he and the Defendant

decided not to play the tapes. Trial counsel also testi fied tha

t he consu

lt ed the Defend ant exte

nsively du

ring jury selectio n and full

y informed him of the likelihood that his criminal record would be u sed for i mpeachm ent purpo ses. The trial court found that

the Defendant had failed to show any prejudice regarding the inclusion of the juror or the playing of the audio tapes. The trial court obviously credited trial counse l’s testimony.
At the hearing on the petition for post-conviction relief, the Defe ndant present e d the testimony of Stephanie Harris and Tracy Moore who a llege dly bou ght the cocaine from the Defendant

during the undercover drug buy. Both testified that they never bought drugs from the Defendant

and, if c alled, wo

uld have s ta ted the same at the Defendant’s trial. In response, trial counsel stated that he was aware of the two witnesses. Tria l counsel testified that

he was also aware of statements Ms. Harris and Mr. Moore made to the police that implicated the Def endant. Trial counsel felt that, given the Defendant’s alibi defense, ca lling Ms. Harris and Mr. Moore, who both had extensive criminal histories, would distract from the Defendant’s theory of the ca se and allow the prosecu

tion another oppor

tunity to dis credit th

e Defe ndant’s a libi. Tria l counsel testifie d t hat he fully discussed this strategy with the D efenda nt. We wil l not secon

d-guess s trategic

decision s, such as this, made by an attorney during trial. See Hellard , 629 S.W.2d at 9; Owens , 13 S.W.3d at 749.
The trial court entered an order which set forth in detail its findings of fact and conclusions of law. The record supports the trial court’s conclusion “that there is nothing in any way t

o suggest that t he [Defendant] has been denied e ffective assistance of counsel or that there has been any abridgment

of any right guaranteed by the Constitution of the United States of America or the State of Tennessee.” The trial

court found that the Defendant was represented by a n attorney with twenty--4-

five years of experience who “pr operly investigated and represented the Def en dant comp etently throughoutthe proc ess.” Th e evidence does n ot prepon derate against the findings of the tri al court

. Accord ingly, the appeal i s without me

rit.
CONCLUSION
For the foregoing reasons, w e c onclude that the trial court did not err by denying the Defendant post-conviction relief. The judgment of the trial cour t is AFFIRMED.

___________________________________ DAVID H. WELLES, JUDGE