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

Briefs O ctober 15, 2003
LETIVIAS D. PR

INCE v. STATE OF

TENNESSEE Direct Appeal from the Circuit Court for Williamson County

No. 801-260 Timothy L. Easter, Judge

No. M2003-00166-CCA-R3-PC - Filed January 27, 2004

Petition er, L etivias D . Prince, filed a p etition fo r post-c onviction

relief, which wa s subseque ntly amended. Followin g an evid ent iary hea ring, the trial court dismissed Petitioner’s petition. On appeal, Petitioner

argue s the tria

l court e rred in dismissing

his petition for post-conviction relief and contends (1) that his counsel failed to develop a reaso nable trial strat egyor defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) tha t his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by

the State at the time of

trial. After a thoroug h review of the record, we

affirm t he judg ment of the

post-con viction c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. J. Britt Phillips, Franklin, Tennessee, for the appellant, Le tivias D. Prince.
Paul G. Summers, Attorney Gene ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Ronald L. Davis, District Attorney Ge neral; and Lee E. D

ryer, A ssistantDistrict A

ttorney Genera l, for the appellee, State of Tennessee.
OPINION I. Background

Following a jury trial, Petitioner was c onvicted of first degree murder and

was sente

nced to life imprisonment. The facts surrounding Petitioner’s conviction were summarized by t

his Court in the direct appeal in State v. Let ivi as Prince , No. M1998-00005-CCA-R3-CD, 2000 WL 1133572 (Tenn. Crim. App., Nashville, Aug. 10, 2000), perm. to appeal denied (Tenn. 2 001) as f ollows:-2- At approximately 10:30 P.M. on March 8, 1997, Joel Dickerson, directed by the victim, Ricky Fly , drove to an area of Franklin to purchase crack cocaine. After circling the block several times, they stopped at

a street corner to ask a "lar ge black man" f or a "twenty ." When the man responded that there was " nothing going on , " they drove away . As they approa ched the i ntersec tio n of Glass and Eleventh, Dickerson heard between four and six successive gunshots which seemed to be coming from some

bushes be

hind his tru ck. Fly

was struc

k in th e bac k of the head by a bullet which came through the rear window. Di ckerson drove to a nearby gas station and called 911. Neither Dickerson nor the victim we

re arme d. Dicke

rson did have a small pocke

t knife sto red in hisglove c ompartme nt. Police immediately identified the def endant as a suspect. Several hours later, he was found hiding in a vehic le. The d efenda nt initially

denied a ny involveme

nt in the shooting, but later took officers to the crime scene and admitted that he had fired at the truck.
When interviewed by

the police, the defendant stated that two white

men in a truck had driven through the area asking for cra

ck cocaine. The defendant stated that he and hi s companions had informed the men that they did not sell drugs. He claimedthat the two men threatened to shoot them and then drove away . He contended

that the two men came around the block aga in and ap pea red to be throwing bottles from the truck. The defendant told police that he shot at the truck in order to

frig hten the me n. He claimed that after he fired the shots, he took the weapon to his home

and hid it u

nder a ma ttress. The police recovered a Lorcin .380 semiautomatic p isto l from the de fendan t's st ep-gran dfath er at t he defe ndant 's residence.
At the trial, Marcus Cannon, who was standing at the corner of Glass Street an d Ninth Ave nue, testified that the men in the truck also asked him to sell them somedrugs. He claimed that when he informed them that he had none, they threatened

to kill someone. Cannon contended that he warned the defenda ntand his friends about the two men. Defense witnesses claimed that the two men in the truck tu rned of f the lights as if to do a "drive by shooting" on their third trip around the block.
Dicke rson's truck contained four different bullet holes. Tw o bullets were imbedded in the truck, one in the passenger door, and a nother in the left rear wheel well. One bullet

and seven lead bullet jackets were recovered from the scene of the shoot ing. The state's expert testimony e stablished that all three bullets and four of the seven shells had been fired from the L orcin .380 pistol. The other three shells were very close to a match. Other than Dickerson's small pocket knife located in the glove compartment, there were no weapons in the truc k.
Prince , 2000 WL 1133572, *1-2.-3-

On appeal, this Court f ound that t

he evidence was sufficient to support Petitioner’s conviction for first degree murder

. Id . at *10.
II. Post-Convict

ion Hearing
In his pro se post-conviction petition, as amended by his counse

l, Petitione

r argu ed that hi s counsel rendered ineffective assistance at trial. Specifically, Petitioner c ontend s that his counsel failedto develop a reasonable trial stra te gy or defense, failed to adequately prepare Petitioner’s witnesses for trial or

investigate the substance of their testimony , failed to allow Petitioner to testify at trial, and failed to request a continuance when pr ovided with exculpatory evidence by the State during t he trial.
At the post-conviction hearing, Petitioner’s counsel at trial, Mark Scruggs, testified that he had twenty y

ears of legal experience and had handle d twenty to twenty-five criminal trials. Since 1988, Mr. Scrugg s’ prac tice hasfocused primaril y on criminal matters.
Mr. Scrugg s said

that he first represented Petitioner in 1996 on some unrelated char ges. Mr. Sc ruggs agreed t o repre sent P etit ioner on th e curre nt cha rges in the sp ring of 1997. Mr. S cruggs hiredCharles Sc ott, an inv estiga tor, to as sist him

in the preparation for trial and began investigating the matter imm

ediately . Petitione

r’s mothe r introdu ced Mr. Sc

rugg s to the pot

ential witnesses, and either he or Mr. Sc ott interviewed a ll of the w itnesses p

rior to tr ial.
Petitioner’s family was ver y involved in the development of Petitioner’s case. They believed Petitioner should be charged with no more than the offense of mansla

ughter . The State

offere d to reduc e the charge aga

inst Petitioner to second degree murder during plea negotiations, but aft e r discussions wi th Pet itioner and his family members, the of fer was rejected by

Petitioner. Mr. Scruggs did not

view the c ase as one of pre meditatio n. His dec ision to put o n a defe nse at the close of the State’s proof was based on the family ’s desire to avoid a conviction of second degree mur der.
Mr. Scruggs presented alterna tive theories of defense as par t of his trial strat egy. Mr. Sc ruggs first argued that Petitioner was not the one who fired the bullet that killed the victim. Althoug h the Staterecovered a slug from the sc ene which matched the caliber of Petitioner’s gun, there wa s no DNA evidence to tie the slug to the victim’s inj urie s. Testimony placed Mar cus Cannon in the vicinity of the shooting with a gun, and one of the witnesses he ard a shot fired from Mr. Cannon’s direction.
Al te rn at iv el y, if the jury believe d that Petitioner fired the bullet that killed the victim, then there was some evidence supporting an argument that Petitioner acted in self-def ense. The primary evidence supportin g this defense w as Petitioner’s sta tement to the polic e inwhich he admitted that he hi d b eh in d a tr ee an d f

ir ed hi s g un in th e a ir as th e t ru ck dr ov e b y. Mr. Scruggs admitted that an argument based on self-defens e was arguably weak. However, Mr. Scrugg s felt that Petitioner’s statement didnot indicate that Petitioner had lain in wait for the truck to return. There was testimony that Mr. Di ckerso n and M r. Fly thr ew thi ngs out of the truck’s windows as they circ led the block.-4-

Mr. Scruggs wanted to show how chaotic a nd tense the situation was that night, and the fact that no two witnesse s descri

bed the se

quence of event s in the sa

me way helped c reate th at pi cture. The ultimate goal of presenting alterna tive theories of defense was to provide the jury with sufficient justification to convict on a lesser-included offense.
Mr. Scruggs said that

either he or Mr. Scott interviewed all of the defense’s witnesses prior to trial and felt

that the testimony was favor able to Petitioner. Their testimony supported a theory that the shooting

occurr ed sponta neously during a tense encounter and that per haps Petitioner had simply panicke d that nig

ht. None of the witnesses gave Mr. Scrug gs an impression that the shooting was premeditated or that Petitioner had lain in wait for the truck as it circ led the block.
The erosion o f Petitione

r’s self -defen se th eo ry occurred during the cross-e xamination of Timothy Prince, Petitioner’s first cousin, who wascalled as a witness for the defense. Mr. Prince testified that he and Pe titi oner hid w hen the tr uck circ led the bl ock the second and third time s. Alth ough he ranaway to a neighboring house, Mr. Prince saw Petitioner hide in some busheswhen the truck passed. Hesaid that Petitioner stepped out of the bushes when the truck returned and fired his gun directly

at the truck. Mr. Scruggs said that none of the wit nesses, including

Mr. Princ e, told him that Petitioner hid and then fired direct ly a t the truc k. On cro ss-examina

tion, Mr. Sc

rugg s said that he would n ot have c alled Mr. Prince a s a witnes s if he had known tha

t Mr. Princ e would

say at trial that Petitioner had hidden prior to shooting at the truck.
Mr. Scruggs said that he only spok e briefly

with Petitio ner abou

t whether or not he w ould testify at trial. The dec isio n was n ot mad e unti l the t rial, and Mr . Scru ggs said he just leaned over and told Petitio ner he di d not think h e should te sti f

y. Pe titioner a greed with Mr. Sc

rugg s’ recommendation. Mr. Scrug gs explai ned th at he did no t feel that Petitioner could elaborate any further on the details contained in his statement, and the statement at least wa s not subje ct to crossexamination. In retrospect, Mr. Scrug gs said that he wished Petitioner had testified, primaril y so that Petitioner could est ablish a rapport with the jury . He admitted, however, that Petitioner’s prior drug convictions would pro

bably be disclosed during cross-examination and that Petitioner would not be an articulate wit

ness. Joel Dickerson was the driver of the truck. At the conclusion of his testimony at tria l, the Stateprovided Mr. Scruggs with a copy of Mr. Dickerson’s prior statement to the police as Jencks materia l. In his trial testimony , Mr. Dickerson said that the shooting occurred shortly bef or e he reached the stop sign at t

he inter section o f Eleven

th and Gla ss. In his prior statement, however, Mr

. Dickerson said that the shooting occurred further down the r oad at the corner of Ninth an d Glass

. In additi on, Mr. Di ckerson ’s descr iption of th

e shooter varied b etween

that giv en in his t

ria l testimonyand the description previously provided the police. Mr. Scruggs said that he pr ob abl y should have requested a continuance bec ause Mr. Dickerson’s statement supp orted Petitioner’s theory that Mr. Cannon was the shooter. All the other witnesses, however, testified that the shooting occurred at Eleventh Street, and the shell casing s were found at that intersection.-5-

Judge Donald P. Harris, a judge with the Williamson County cir cuit court, pr esi ded over Petitioner’s trial and was called to testify at the post-conviction hearing. Judge Harris recalled that he thought the evidence supporting premeditation was not ve ry strong when the State rested its case. He recollected that the driver of the truck had testified that he had driven by the scene of the shooting once and that six or seven shots were fired. There was no evidence showing any contact between Petitioner and the victim. Judge Harris, however, denied Petitioner’s motion f or a ju dgm ent of acquittal because the evidence showed that numero us shots had been fired in quick succession. Judge Harris, however, observed that he wa s not sure if he cou ld approve a verdict of first degr ee murder in his capacity a s thirteenth juror based on the evidence presented at the close of the State’s proof.
After

the defense’s witnesses had testified, however, Judge Harris viewe d t he State’ s case of first degree murder as much strong er. He recalled that one of the defense witnesses said that the truck circled the block

severa l times, tha

t Petitione

r hid behind a tree , and that P etit ioner then steppedout and began

shooting. Judge Harris said that he did not remember the issues conce rning Mr. Dickerson’s prior statement and could not say whether or not he woul d ha ve granted a continuance had Mr. Scruggs requested one. Judge Harris said that he never felt that Mr. Scrug gs’ repres entation

of Petitioner durin g the tr ial was a nyt hing les s than com

petent.
A number of the defense’s witnesses at trial testified at the post-c onviction hearing. Dwight Wall, Allen Prince and Tany a Andrews testifi e d that the y c ould not re

member if

they talked wi th either Mr. Scruggs or

Mr. Scott prior to trial. Shalandra Fitzgerald and Kizzy Wall said that they talked to Mr. Scruggs and Mr. Scott prio r to trial but were not adequately prepared to testify . On cross-examination, both witnesses however , said tha t they would not h ave test

ified an y di ffere ntly ha d t he ir di sc us si on s w it h M r. Sc ru ggs be en mo re le ng th y. TimothyPrince testified that he told Mr. Scott about Petitioner hiding in the bushes pr

ior to trial. He also told Mr. Scott that Mr. Cannon yelled a t him to warn h im that the men in the truck were coming back, and that Mr. Cannon was standing “ five to ten miles” down the road when he calledout his warning. Mr. Prince said that no one told him what questions would be asked prior to the tria l.
At the pos t-convi ction hearing, Petitioner said that he did not testify at trial because Mr. Scru ggs s aid that it would not be “good” if he did. He said that Mr. Scrug gs made the decision. After the witnesses for the defense testified, Petitioner said that he wanted to testify but did not bring up the subject because Mr. Scrugg s had alread y to ld him he wa s not going to testify. Petitioner relied on Mr. Scrug gs’ advice. On cross-examination, Petitioner said that he did not tell Mr. Scruggs that he wanted to testify.
Joe Baugh, an at

tor ney in Fra

nklin, who was district attorney g eneral at the time of Petitioner’s trial and handled the prosecution of the matter, testified at the po st-co nvict ion h earing. Mr. Baugh said that he recalled that the discrepancies be tween Mr. Dickerson’s trial testimony and-6-

his statem

ent to the polic e were

not, in his opinion, significant. He said that he did not know why the State waited un

til the tria l to provid

e the def ense with a copy of Mr. Dic

kerson’ s stateme

nt.
John Berringer, a member of the State’s prosecutionteam, said that the State decided to let the defense call the witnesses who testified on Petition er’s behalf s o that they would have the opportunity to ask leading questions during cross-examination.
At the conclusion of the post-conviction hearing, the trial court denied

Petitioner’s petition for post-conviction relief. The tria l court fo und that Mr . Scrug gs’ strategy based on self-defense was entirely re asonable based on the evidence discovered prior to trial and Petitio ner’s own stateme nt. The evidence also suppor te d an alternative shooter theory . Petitioner failed to present any other str ategy that would

have led to a more

favora ble result. The tr

ial cour t accre dited Mr. Scrugg s’ testimonythat he interviewed all of the witnesses, including Timothy Prince , prior to trial. Further, the witnesses failed to demonstrate any prej udice fr

om a lack of preparation. The fact that Mr. Prince’s testimony proved to be damag ing at trial did n ot by its elf su pport a find ing th at Mr. Scruggs was ineffe ctive. Th

e trial c ourt found tha

t Pe titioner also failed to demonstrate that his counsel’s assistance was ineffective concerning Petitioner’s ri gh t t o t es ti fy a t t ri al . S pe ci fi ca ll y, the trial court found that Mr. Scruggs consulted with Petitioner about this decision b efore t he trial, and that Petitioner accepted Mr. Scruggs’ recommendation that he not testify . Based on thevideo transcript of the trial , the trial

court found that Pe

titioner f ailed to p rove tha t the resu lts of his trial would have been different had Mr. Scrugg s asked for a continuance when he received a copy of Mr

. Dickerson’s prior inconsiste

nt stateme

nt. Furthermore, the trial court found that “[Mr.] Scruggs skillfully used the statement in an effective cross-examination of [Mr.] Dickerson.
III. Standard of Review
A petitioner

seeking post-conviction relief must establish his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997) . The trial court’s findings of fact in a post-conviction hearing are aff orded the weight of a

jury verdict. Black v. State , 794 S.W.2d 752, 755 (Tenn. Cr

im. App. 1990 ). There

fore, th is Court may not re -weigh or re-e valua te the se fin dings nor substitute its inferences for those of the tri al ju dge unless the evidence in the recor d preponderates agains t those findings. State v. Honeycutt , 54 S.W.3d 76 2, 763 (Te nn. 2001) ; State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In addition, questions concerning the credibility of witnesses and the weight

and value

given th eir testimony

is resolved by

the trial court, a nd not this Court. Id . However, thetrial court’s application of the law to the facts is reviewed de novo , without a presumption of correctness. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). A claim that counsel rendered ineffe ctive as sistance

is a mixed question of fact and law and therefore also subject to de
novo review. Id. ; Burns , 6 S.W.3d at 461.
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of counsel, he must establish that counsel’s performan ce fell below “the range of compe tence demanded of attorney s in criminal cases.” Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In addition, he must s how that counsel’ s ineffective pe rforman ce actu ally

adverse ly im pacted h is-7-

defense. Strickland v. Washington , 466 U.S. 668, 693, 104 S. Ct. 2052, 2 067, 80 L. Ed. 2d 674 (1984). In reviewing

counsel’s performance, the distortions of hindsight must be avoided, and this Courtwill not se cond-g

uess coun sel’s de cisio ns regardi ng trial strategies and tactics. Hellard v. State, 629 S.W.2 d 4, 9 (Tenn. 1982). Th e reviewing court, ther

efore, should not c onclude t hat a particular act or om ission by counsel i s unreas onable me rely because the st rategy was unsuc cessful

. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged from couns el’s p erspec tive a t the p oint of tim e they were m ade in ligh t of al l the facts and circumstances at that time. Strickland , 466 U.S. at 690, 104 S. Ct. at 2066.
A petitione

r must sati sfy

bothprongs of the Strickland test before he or she may prevail on a claim of ineffective assistance of counsel. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). Th at is, a petit

ioner mus t not only

show that h

is counse l’s perf ormance fell belo w acceptabl e standar ds, but that su ch perf

ormance was pre judicial t o th e petitioner. Id. Failure to satisfy either prong will result in the den ial of re lie f. Id. Accordingly , this Court need not address one of the componen

ts if the petitioner fails to establish the other. Strickland , 466 U.S. at 697, 104 S. Ct. at 2069. IV. Trial Strategy and Preparation of Witnesses
Petition erarg ues that Mr. Scruggs provided ineffective assistance of counsel in the development

of a reasonable trial strategy and the preparation of

Petitioner’s witnesses for trial. The crux of Petitioner’s argument revolves around the damaging testimony elicited from Timothy Prince during the State ’s cross -examinat ion. Judge

Harris t estified that h e felt the State’s p roof as t o premeditation was weak and he did not know if he could have approv ed a verdict of first degree murder in his capacity as thirtee

nth juror. After the testimony of the defense witnesses, however, Judge Harris felt the State’s case supporting a ve rdict of first degree m

urder was muc h stronger. Petitioner argue s that Mr. S crugg s’ decision to pursue a trial strategy

based on self-defense resulted from inadequa te prepa rati o n. Mr. Prince testified that he told Mr. Scott that Petitioner hid behind somebushes and then shot directly a t Mr. Di ckerso n’s truck prior to trial. Petitioner argues that since Mr. Prince said that Mr. Cannon was five to ten miles away when he warned Petitioner and Mr. Prince that the tr

uck was r eturnin g show s that Mr. Scruggs did not adequately prepare Mr. Prince to testify at trial.
The fact that the testimony of a witness at trial proves less than helpful to the defense does notnecessarily

lead to the conclus ion that a defenda nt’s coun sel was ineffec tive eithe r in inves tigat ing, prepar

ing or c alling th

e witness . “I

t is alltoo tempting for a

defenda nt to seco nd-gue ss counsel’s assistance after conviction or adverse se ntence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to concludethat a particular act or omission of counsel was unreas onable.” Strickland , 466 U.S. a t 689, 104 S. Ct. at 2065 . Rather, we must “evalua te the co nduct fr

om counsel’s perspective at the time” in light of all of the cir cumstances faced by counsel at the time the decision was made. Id. , 466 U.S. at 688, 104 S. Ct. at 2065.-8-

Counsel has the du

ty to make reasonable investigations into the case and to raise a ll availa ble defenses in atimely manner. State v. Burns , 6 S. W.3d 453, 4 62 (Te nn. 19 99), ( quot ing Strickland , 466 U.S. at 691 , 104 S. Ct. a t 2052; Baxter , 523 S .W.2 d at 93 2-33) . Alt hough counsel’s decisions are entitled to a heavy

measure of deference, uninf ormed choices based

on inadequate preparation may constitute ineffective assistance. Hellard v . State , 629 S.W.2d 4, 9 (Tenn. 1982) (quoting United States v. DeCoster , 487 F.2d 1197, 1201 (D. C. Cir. 1973)).
Mr. Scruggs testified that he beg an investigating Petitioner’s case as soon as he was retained. Either he or Mr. Scott, or b oth, inter viewed a ll of the w itn es ses. Petiti oner’s m other as sisted in gatheringthe witnesses together and making them ava ilable to Mr. Scruggs an d his inves t igator. These interviews did not indic at e a ny unfav orabl e test imon y to Peti tion er’s ca se. Mr . Scru ggs testified that if he had known Mr. Prince was going to testify as he did, he would not have called Mr. Prince a s a witnes s. There is no doubt thatMr. P rince’ s testimony at trial w as damag

ing. The trial cou rt, however, found that Mr. Scruggs interviewed a ll of the w itnesses prio r to trial and ade quately prepared for trial. In so doing, the trial court specifically ac credited Mr. Scruggs’ testimony that Mr. Prince did not tell him prior to trial that Petitioner was “hiding in the bushes.” The trial court had the opportunity to view the demeanor of both Mr. Scruggs and Mr. Prince at the post-c onviction hearin g. Questionsconcer ning the credibi lity

of witnes ses and th

e weight and val

ue to be give

n to their testimony are r

esolved by the post-conviction court, not this Court. Burns , 6 S.W.3d at 461.
The trial court further found that Mr. Scrugg s presented reasonable altern ative theories of defense based on the information gathered from the witnesses and Petitioner’s statement to the police. “The re asonable

ness of counsel’s actions may be de termined or substantially influenced by the defendant’s own actions or s tatements.” Strickland , 466 U.S. at 691, 104 S. Ct. at 2066. The fact that eve n Mr. Scru ggs, in hindsig

ht, regrets putting on a defense at the close of the State’s proof does notrender his decision ill advised when viewed under the circ umstances present at the time of trial. See Hellard. 629 S.W.2d at 9-10.
Based ona thorough review of the rec ord, we f

ind that the

evidenc e does no t prepond erate ag ainst the trial court’s finding that Mr. Scrugg s’ assistance during the prepara tion and course of Petitioner’s trial w as e ffective and within the range of c ompetence demanded of attorney s in criminal cases. Petitioner is not entitled to relief on this issue.
V. Ri ght t

o Test ify
Petitioner concedes that the procedures established in Momon v. State , 18 S.W.3d 152 (Tenn. 1999) to safeguard a

defendant’s right to testify were not applicable in 1997 when Petitioner’s trial occurred. Nonetheless, Petitioner arg ues that his right to testify is a funda mental right which may only be persona

lly waived. Id. at 161. Pe titioner c ontends th at Mr. Scr uggs u nilatera lly made the decision that Petitioner would not testify even thoug h Petitioner wanted to testify af ter the damaging-9-

testimonyof the defense

witnesse s. Petitione

r points out that he

was eig hteen y ears old at the time of the tri al and re

lied solel y on the advic e of his c ounsel.
Mr. Scrugg s testifie d that h e did not have a lengthy discussion with Petitioner concerning wh ether or not Petitioner would testify. He said, howe ver, that they did discuss the be nefits and disadvantages attendant on Petitioner testifying . At the time, Mr. Scruggs felt that taking the stand would not be in Petitioner’s best interest. Petitioner’s statement was already in the record and not subject to cross- examinatio n. In retrosp ect, Mr. Scrugg s said that perhap s Petitioner should have testified if for no other reason than to personalize the situation. Mr. Scrugg s conceded, however, that Petitioner had two prior

drug convicti ons which

would thre aten any

rapport he might establish with the jury. Mr. Scrug gs also admitted that Petitioner was not very articulate.
The trial court accredited the testimony of Mr. Scruggs over that

of Petitioner and found that the record showed that Mr. Scrugg s recommended to Petitioner that he not testify at trial, and that Petitioner accept ed that r ecommendation. Mo

reover , the tria

l c our t found that Petitioner had previous ly

been explained ab out his right to testify in another c riminal proceeding. The evidence does not preponderate against the trial court’ s implicit finding that Petition er made a n informed decision not to testify, and Petitioner is not entitled to relief on this issue.
VI. Failure to ask for a Continuance Following the conclusion of Mr. Dickers on’s testimony , the State provided Mr. Scrug gs with a copy of Mr. Dic

kerson’s prior

statement to the police which contained both a different description of the shoot er and a diffe rent l ocati on for the sh ooti ng. Mr. Scruggs asked fo r a ten min

ute rec ess to review the st ateme nt and then c ross- exam ined M r. Dic kerso n at le ngth co ncerni ng t h e discrepancies betwee

n his trial testimony and his statement to the police. Petitioner speculates that further investigation of Mr. Dickerson ’s earli e r statement would have bolstered Petitioner’s contenti on that an other pe rson fired the fat

al shots.
The trial cou

rt found t hat Mr. Sc

rugg s’ cross-e

xamination o f Mr. Dickerson a t trial asto the discrepancies betwee

n his state

ment and h

is trial testimo ny was both skillful and effective. Petitioner did not demonstrate at the post-con vic tion hearing that a continuance would have produced any diffe rent result or produced any thing to benefit him. See Bes t v. State , 708 S.W.2d 421, 422 (Ten

n. Crim. Ap

p. 1985). The evid

ence do es not p repondera te against the trial court’s finding that Petitioner failed to prove that he was prejudiced by Mr. Scruggs’ failure to ask for a continuance. Petitioner is not entitled to relief on this issue.
CONCLUSION
After a thoroug h review of the record, we

affirm t he judg ment of the

trial cou rt.

____________________________________ THOMAS T. WOODALL , JUDGE