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

Briefs D ecem

ber 4, 2001
ANTWONE TERRY

v. STATE OF TEN NESSEE
Appeal from the Circuit Court for Lake County No. 99-CR-7719 R. Lee Moore, Judge

No. W2001-00177-CCA-R3-CD - Filed April 10, 2002

The petitioner, Antwone Terry , appeals the denial of his petition for post-conviction relief. In thi s appeal, the petitioner contends (1) that he did not receivethe effective assistance of counsel and ( 2) that the state engaged in prosec utorial misconduct. The judgment of the trial court is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delive red the o pinion of t

he court , in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.

Ti mo th y C. Na if eh , T ip to nv il le , T en ne ss ee , f or th e a pp el la nt , A nt wo ne Te rr y.
Paul G. Summers, Attorney Gene ral & Reporter; Mark A. Fulks, Assistant Attorney General; and C. Phillip Bivens, District Attorney Genera l, for the appellee, the State of Tennessee.
OPINION On July 23, 1997, the

victim, Tommy Crawford, who wa s working as a corrections office r in the Academic School at the Northwest Correction Center (NWCC), noticed that the petitioner was smoking a

cigarette during a c lass break. Becaus e smok ing was not p ermit ted in side t he bui ldin g, Crawford directed the petitioner to extinguish his cigarette. Wh en th e p et it io ne r f ai le d t o c om pl y, Crawford repeated his directive. The petitioner responded by

grabbing Crawford

and knocking him to th e g ro un d. Cr aw fo rd su st ai ne d a br ok en hi p w hi ch re qu ir ed su rg er y. Afterward, the petitioner admitted to corrections officer L ewis Rodriguez tha t he w as responsi ble for the assault. Later in the day , Victor Middlebrook, an internal affairs investigator for the Department of

Correction, interviewed both the petitioner and the victim. After being a dvised of his rights, the petitioner

informed Investiga

tor Middlebrook that he had struck Crawford several time s. He al so admitted that when Crawford attempted to retaliate, he pushed him to the g round. The petitioner assured Investig ator Middlebrook that no other inmates wereinvolved in the attack.-2-

Joel Foster, a corrections of ficer a t NWCC who assisted in the investigation of the incid ent, was present when the petitioner confessed to the assault. In addition, Officer F oster prepared a photogr aphic lineup from

which the

victim ide

ntified th e petition er as his assailan

t.
The petitioner, convicted of one count of agg ravated assault, received

a Range II

I, persistent offender sentence of ten years. The sentence was order ed to be served consecutively to concurrent se ntenc es the petitioner was serving at the time of the assault. This court af firmed the conviction
on direct appeal. See State v. Antwone Terry , No. W1999-00355-CCA-R3-CD (Tenn. Crim. App., at Jackson, April 4, 2000). Later, the petitioner filed this petition for post-conviction relief, alleging among other things that he was denied the effective assistance of counsel a nd that the

state wa s guilty of misconduct by failing

to disclose favorable evidence.

At the evidentiary he aring on the petition, the petitioner testified that his trial counsel failed to interview any

witnesse s prior to h

is trial. H e claim

ed that he info rmed counsel that there were several witnesses to the incident but conced ed that he didnot know their names. According to the petitioner, other inmates whose photographs were include d in the lineup might have been potential witnesse s. It wa s his conte ntion that h

is tria l counsel shou ld have in terview ed the inmates to determine whethe

r any of them po ssessed f

avorabl e informa

tion. The p etitioner

also claimedthat his attorne

y should have

located witnesse s who would

state that the victim was attacked by other inmates.

The petitione

r also tes tified tha

t his tr i al counsel should have obtained the services of a handwriting expert. He

claimed t

hat the sig

nature o n the hand

writte n statement prepared by Investigator

Middl ebr ook was forged and asserted tha t an expert could have confirmed that. The petitioner also cont ended tha t his trial c ounsel fa

iled to ad equatel y c ommunica

te at trial and during the direct a

ppeal. He claimed that his counsel met with him only once before trial, failed to respond to his l etters, and refused to file requested motions prior to trial or ask c ertain of his proposed questionsfor witne sses. Investigator Middlebrook testified that he had prepared the handwritten state ment of admission and that the petitioner signed t he docume

nt, making and initialing several chang es. He recalled that after the statement was signed, the petitioner re ad the statement into a tape recorder. The tape was l ost be

fore tria l. Wh ile Investigator Middlebrook c ould not recall whether he had spoken with the petitioner’s counsel prior to trial about the loss of the tape, he remembered that the loss of the tape was an issue of lengthy discussion during the trial. Inve stigato r Middleb rook also testified that he took statements from several inmates and recalled that he provided the state ments to the Dist

rict Attor ney Genera l.
Frank Wilburn, who was incarcerated at NWCC at the time of the assault, testified that he walkedfrom his classroom into the hallway w hen he heard the altercation and saw the victim point his finger and

order the petitioner to put h is ciga rette ou t. Because his own teacher made him return to the classroom, Wilburn did not see the assault. He conceded that the petitioner’s counsel did not question h

im about the

incident

.-3-

Trial counsel, who represented the petitioner

at trial a nd on appe al, testif

ied that he met with the petitioner at least once while the petitione r was inc arcer

ated at We st

Tennessee High. He added that an investigator

for the Pu

blic Def ender’ s office

met with the

petitione r at the f acility on at lea st one occasion. Counsel testified that he recei ve d several letters from the petitioner and accommodated

those requests that appeared, in his view, to be proper. Recalling that the petitioner askedhim to interview the other inmates that were included in the photographic lineup, trial counsel confessed uncertainty but stated tha

t he believed aninvestigator for his office had attempted to locate those individuals. Trial counsel was not aware of any testimony

that would

have be en beneficial to the petitioner. He described the theory of defense as one of

self-defense rather than one of mistaken id en ti ty.
Trial counsel conceded

that he did not go to the prison to interview Inve stigator Middlebrook or Officer Foster with reg ard to the loss of the tape record ing. Al thou gh he had asked the District Attorney Genera l t o provide a copy

of the tape and Inve stigator Middlebrook indicated that one would be provided, trial counsel explained that he was no

t made aw are tha

t the tape had bee n lost until trial. Counsel acknowledged that he had not interviewed Inve stigator Middlebrook’s superiors to determine whether the tape had, in fact, bee n lost.

Counsel explained that a handwriting expert was not necessary because the pe titioner had acknowledged

that his signature appeared on the statement. He testified that

he learned at a pretrial hearing on the pet

itioner’ s motion to su

ppress the stateme

nt that I nvestig ator Mid

dleb rook had written th e body of the sta tement and the petitioner ha d signed it.

The trial court foundthat

the petitioner had failed to prove by clear and convincing evidence that he received the ineffective a ssistance of counsel. Specifically , the trial court ruled that the petitioner had failed

to demonst

rate that his counsel’s performance was deficie nt. In addition, the trial court noted that the petit ioner ha d failed to establi sh that an

y f ailure o f counse

l resulte d in prejudice.

I The pe titioner f

irst asse rts that he

was deni ed the ef

fective assistanc e of coun sel at tri a l

. Sp ecifica ll y, he contends that trial counsel was ineffective for failing to adequately

investigate, failing to retain a h andwriting expert, and failing to adequately communicate with him. The petitioner claims that

his trial counsel should have interviewed the inmates whose photographs wer e included in the l ineup bec ause the y might hav e possess ed favor able inf ormation, argues t

hat a handwriting expert w ould have establish ed that hi s signature on the handwritten statement prepared by Investig ator Midd

lebrook w as a for

gery, and assert s that the degree of communication with trial counsel w as minimal

. When a petitioner seek s post -conv iction relief on the basis of ineffective assistance of counsel, he must first establish that the services rendered or the advic e given were be low "t he range of c ompetence dem anded of atto rneys in criminal cas es." Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975). Se cond, he must show th at th e deficiencies "actually had an adverse effect on the-4-

d efense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Should the petitioner fail t o establish either f actor, h e is not entitled to relief. Our supreme court described the standa rd of review as follow s:
Becau se a

petitioner must establish both prongs of the test, a failure to prove either deficiency

or pre j udice provides a sufficient basis to deny relief on the ineffective assistance claim. Indeed, a cour t need not address the components in any particular order or even ad dress bot h if the defendant

makes an insufficient showing of one co mponent.
Goadv. State , 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineff ective a ssistance

of counse

l, the petitione

r is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial st ra te gy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactica

l d ecisions of counse

l, howeve r, applie s only

if the ch oices ar

e made a fter ad equate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

In a post-c onviction

procee ding, the

petitione r bearsthe burde

n of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40- 30-21 0(f). On appeal, the findings of fact made by the trial court a

re conclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Brooks v . State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponder ated agains t those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

The proof at the evidentiary hearing sugge sts that the communication betweentrial counsel and the petitioner could have been more extensive. Trial counsel w as uncer

tain whet her his office had requested that an investigator contact potential witnesse s and he a

pparent ly d id little to make up for any defic iencies in the investigation of the crime. The proof sug gests that the defense did not conduct interviews of potential witnesses. Of equal importance, however, is that the petitioner has failedto demons trat e how those deficiencies affecte d the results of the trial. See Strickland , 466 U.S. at 693. No witnesses at the evidentiary hearing shed

new light on the circumstances. In Black
v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990), t hi s court pl aced the burden o n the postconviction petitioner to produce whatever testimony may have been helpful. No one, expert or otherwise, was call ed to corroborate the claim that the signature on his stateme ntwas a fo rge ry. In
our view, the evidenc e does no t prepond erate a gainst the finding of

the trial court that the petitioner was not pr

ejudice d by

any inaction on the par

t of his tri al counse

l.

II The petitione

r also all eges th at the sta

te engag ed in

prosecu torial misc onduct with rega rd to the tape re cording

of his stat

ement to I

nvestig ator Mid dlebrook. The state contends, and the trial court ruled, that this issue has been previously determined.-5-

Post-conviction procee dings ma y not be emplo ye d to raise , reli ti gate or review questions decided and disposed of in a direct appeal from a conviction. Morgan v. State , 1 Tenn. Crim. App. 454, 445 S .W.2 d 477 ( 1969) . Tenn essee C ode An notat ed sect ion 4 0-30- 206 go verns t he concept of previous determination:

A ground for relief is previously determined if a co urt of competent jurisdiction has ruled on the meri ts after a full and f air hea ring. A full and f

air hearing ha s o cc ur re d w he re th e p et it io ne r i s a ffor de d t he op po rt un it y t o c all witnesses and ot herwise present evidence, reg ardless of whether the petitioner actua ll y introduced any e

vidence.

Tenn. Code Ann. § 40-30-206(h). Here, the petitioner presente d the issue of the lost tape as a ground for relief in both the motion for new trial and on direct appeal. While couched in slightly different terms in his post-conviction petition, the issue presented earlier is essentially the same. This court held on direct appeal that the trial court accredited the testimony

of Investigator Middlebr ook that the tape recording of the

statemen t had simply

been lost . This cou

rt ruled t hat the sta

te’s fai lure to produce the tape

did not wa

rrant a new tria l. In our view, the issue

has been previously

determined. See Tenn. Code Ann. § 40-30-206(h).
Moreover, the petitioner would not be en title d to relief on the me rits of hispresent

claim. While the issue is phrased in terms of prosecutorial misconduct, the petitioner is essentially ar guing that the state failed to produce exculpatory evidence as required under Brady v. Maryland , 373 U.S. 83 (1963). Before this court may find a due process violationunder Brady , the follo wing el ements must be established:

1. The defend ant mus t have requested t he infor mation (un

less the e vidence is obviously exculpatory, in which case the State is bound to release the information whether requested or not); 2. the State must have suppressed the information; 3. the information must have been favorable to the acc used; and 4. the infor

mation must

have be en mater

ial.

Statev. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehear ing). Whi le the petitioner’s trial counsel requested that the state provide him with a copy of the tape , none of the other factors appear to be present. Thus, the petitioner is not entitled to relief on this issue. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE