FILED

July 23, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 JUNE 1997 SESSION 

AT JACKSON

STATE OF TENNESSEE, ) 

) C.C.A. No. 02C01-9612-CR-00479 

Appellee, )

) Shelby County

V. )

) Honorable Bernie Weinman, Judge

)

DWAYNE E. ANDERSON, ) (Burglary)

) 

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Gerald Stanley Green John Knox Walkup

Attorney at Law Attorney General & Reporter 

301 Washington Avenue, Suite 302

Memphis, TN 38103-1911 Elizabeth T. Ryan

Assistant Attorney General

At Trial 450 James Robertson Parkway

Lenal Anderson, Jr. Nashville, TN 37243-0493

Attorney at Law

100 North Main Building, Suite 3300 William L. Gibbons

Memphis, TN 38103 District Attorney General

Perry S. Hayes

Assistant District Attorney General

201 Poplar Avenue, Suite 301

Memphis, TN 38103-1947

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge
1

The appellant’s counsel, during his m otion for a continuance, stated that the state had failed to timely respond to

his m otions for discovery. He claimed that the state possessed a shirt found at the crim e scene and photographs of the crime

scene. These items, he alleges, were not timely delivered to him. The trial judge stated that the appellant's counsel was

dilatory in w aiting until the trial date to com plain about discovery problem s. Nevertheless, the shirt was not introduced into

evidence at trial and apparently, no photographs existed. Furthermore, the trial judge did not find the shirt to be exculpatory in

nature. In fact, at the hearing on the m otion for new trial, he allowed the appellant's attorney one week to review the evidence

to determine if it was exculpatory in any way. Nothing in the record suggests that appellant's counsel found anything that

would have helped his client. 

-2-

O P I N I O N

The appellant, Dwayne E. Anderson, was convicted by a jury of burglary

and two counts of theft of property over $1000. He was classified as a career

offender and received an effective sentence of 12 years incarceration. He

appeals alleging that he received ineffective assistance of counsel. Upon

review, we affirm.

The appellant contends that his trial counsel's inadequate preparation

deprived him of a fair trial. Specifically, he claims that his counsel did not have

an adequate amount of time to "investigate and explore any of the items

discovered" in his case.1 

Prior to trial, the appellant's counsel moved for a continuance. He based

his motion on the fact that the prosecution had only responded to his discovery

request three days before trial. Also, he stated that he needed more time to

explore a possible alibi defense. The judge denied the continuance. 

At the hearing on the motion for new trial, counsel reiterated the fact that

he was not prepared for trial. He claimed that his lack of preparation deprived

the appellant of his constitutionally guaranteed right to effective assistance. The

trial judge denied the motion finding that the appellant received effective

assistance. Furthermore, the trial judge stated that the appellant had failed to

show that his counsel's actions or inactions prejudiced him in any way. 

The test to determine whether or not counsel provided effective

assistance at trial is whether or not his or her performance was within the range
2

The appellant was identified by a police officer pushing a grocery basket behind a building that had just been

burglarized. The grocery basket contained stolen merchandise taken from the building. Upon seeing the police, the appellant

abandoned the stolen goods and fled. He was found lying in the grass close to the building and was apprehended. 

-3-

of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washingtion, 466 U.S. 668, 104

S.Ct 2052, 80 L.Ed. 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82

L.Ed.2d 864 (1984). Under Strickland there is a two-prong test which places the

burden on the appellant to show that (1) the representation was deficient, and (2)

the deficient representation prejudiced the defense to the point of depriving the

defendant of a fair trial with a reliable result. Id. at 687. However, if this Court

finds that the appellant suffered no prejudice, any deficiency in his trial counsel is

considered harmless. Strickland, 466 U.S. at 693. Therefore, even if the

appellant’s counsel was ineffective, he must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 693. 

The record reveals that the appellant's trial counsel provided effective

representation. His attorney cross-examined all of the state's witnesses. He

effectively questioned and cast doubt on a police officer's ability to identify the

appellant. He elicited the fact that the appellant's fingerprints were not found on

the stolen merchandise or on anything associated with the burglary. His

performance was within the range of competence demanded of attorneys in

criminal trials. Unfortunately, for the appellant, the state had a substantial case

against him.

2

 

The appellant has not carried the burden of proving that the results of his

trial would have been different had he received more effective representation. In

fact, at the hearing on the motion for new trial, the trial judge asked the

appellant's trial counsel what he would have done differently if he had been more

prepared. He was unable to articulate a reasonable strategy. The appellant

received effective assistance and was not prejudiced by his counsel's

representation. We affirm the judgment of the trial court. 
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________________________________

PAUL G. SUMMERS, Judge

CONCUR:

___________________________

DAVID H. WELLES, Judge

___________________________

JOE G. RILEY, Judge